Strengthening World Heritage protection in the Pacific€¦ · opportunities and challenges it...

Strengthening World Heritage

protection in the Pacific

An exploration of Solomon Islands’

implementation of the World Heritage Convention

Stephanie Clair Price

LLB (Dist) BSc (Hons)

This thesis is presented for the degree of Doctor of Philosophy of The University of Western Australia

School of Law

2017

Thesis Declaration

I, Stephanie Clair Price, certify that: This thesis has been substantially accomplished during enrolment in the degree. This thesis does not contain material which has been accepted for the award of any other degree or diploma in my name, in any university or other tertiary institution. No part of this work will, in the future, be used in a submission in my name, for any other degree or diploma in any university or other tertiary institution without the prior approval of The University of Western Australia and where applicable, any partner institution responsible for the joint-award of this degree. This thesis does not contain any material previously published or written by another person, except where due reference has been made in the text. The work(s) are not in any way a violation or infringement of any copyright, trademark, patent, or other rights whatsoever of any person. The research involving human data reported in this thesis was assessed and approved by The University of Western Australia Human Research Ethics Committee. Approval #: RA/4/1/6075. The following approvals were obtained prior to commencing the relevant work described in this thesis:

Ethics approval from The University of Western Australia Human Research Ethics Committee

Research permit from the Solomon Islands Government. This thesis does not contain work that I have published, nor work under review for publication.

Signature: Date:

1 March 2017

Stephanie Clair Price

i

Abstract

The World Heritage Convention requires State parties to implement the legal measures

needed to conserve the World Heritage sites within their borders. However, protecting

World Heritage under law is challenging in many countries, including in Solomon Islands

and the other independent Pacific Island States. This research investigates the

implementation of the Convention in the Pacific, with a focus on Solomon Islands, to

identify options that could improve the legal protection of World Heritage in that region.

This is achieved by exploring World Heritage conservation at two scales.

Firstly, the Convention regime is analysed in the Pacific context, to understand the

opportunities and challenges it presents for the recognition and protection of Pacific

Island heritage. Only eight of the 1,052 sites on the World Heritage List are within the

independent Pacific Island States. This research considers why the region remains under-

represented, despite the international community’s efforts to improve the balance of that

List. It explores the potential for the Convention to be utilised in the region, by examining

the nature of Pacific Island heritage and the meaning of the concept of ‘World Heritage’.

It also considers the extent to which Pacific Island nations can implement World Heritage

protection measures that are appropriate for their context. This involves analysing State

parties’ protection obligations and the structural elements of the Convention regime, with

reference to key features of Pacific Island States, including their land tenure and legal

systems.

Secondly, Solomon Islands’ implementation of the Convention is investigated, focusing

on its only listed World Heritage site, East Rennell. That site comprises one-third of the

island of Rennell and the surrounding marine area. It is under customary tenure, and is

owned and occupied by the East Rennellese people. It was the first listed World Heritage

site in the Pacific Islands, and the first place to be inscribed based on its natural heritage

values and its protection under customary law. Consequently, its listing was heralded as

a landmark in the implementation of the World Heritage Convention. However, East

Rennell is now on the List of World Heritage in Danger, due to the threats posed by

extractive industries, invasive species, climate change, and the over-harvesting of certain

ii

animals. The site’s protection under law must be strengthened if those threats are to be

addressed.

This research analyses the nomination and inscription of East Rennell, exploring the links

between those processes and the site’s protection. The disparity between the local and

global significance of the area and the challenges it poses for the conservation of the site

are investigated. The Solomon Island government’s approach to World Heritage

protection is also considered, to understand why it has failed to strictly protect the site.

The study also involves analysis of the protection of East Rennell’s World Heritage values

under customary and State legal systems, with reference to the principal threats to those

values. To assess the strength of the site’s protection, the customary laws and governance

structures of East Rennell are considered, and key legislation is analysed. In addition,

legal and practical issues influencing the operation of customary and State legal systems

are explored.

From this, regional- and national-level options that could improve the legal protection of

World Heritage in Solomon Islands and other similar States have been identified. These

options relate to issues such as the nomination and listing processes, the World Heritage

Committee’s decision-making, and the provision of assistance to Pacific Island States.

Specific recommendations concerning the amendment and implementation of Solomon

Islands’ legislation are also made.

A socio-legal approach is taken in this research, allowing both black-letter legal analysis

and an exploration of the context within which legal systems operate. Hence, the

methodology involved reviewing relevant literature and legislation, as well as empirical

research comprising interviews and legal work undertaken by the author in Solomon

Islands. The study could inform the development of measures to strengthen the protection

of East Rennell, which may ultimately lead to the site’s removal from the List of World

Heritage in Danger. More broadly, the lessons learned from Solomon Islands’ experience

could be utilised by other Pacific Island States and organisations to improve their efforts

to implement the World Heritage Convention.

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Table of Contents

Abstract ..................................................................................................................... i

Table of Contents ........................................................................................................... iii

Acknowledgements ......................................................................................................... ix

List of Abbreviations and Acronyms ........................................................................... xi

List of Tables ................................................................................................................ xiii

List of Figures ................................................................................................................ xv

Chapter 1: Introduction .............................................................................................. 3

1.1 Introduction ............................................................................................................ 3

1.2 Introduction to the World Heritage Convention regime and its implementation in the Pacific region ................................................................................................... 4

1.2.1 The World Heritage Convention regime .................................................... 4

1.2.2 World Heritage in Solomon Islands: The listing and protection of the East Rennell World Heritage Site ...................................................................... 8

1.2.3 World Heritage in the Pacific Island States: The implementation of the Global Strategy ......................................................................................... 15

1.2.4 Strengthening the protection of World Heritage in Solomon Islands and other Pacific Island States ........................................................................ 23

1.3 Research questions and scope .............................................................................. 24

1.3.1 Research questions 1 and 2....................................................................... 25

1.3.2 Research questions 3, 4 and 5 .................................................................. 26

1.3.3 Research question 6 .................................................................................. 28

1.4 Research methodology ......................................................................................... 28

1.5 Literature review .................................................................................................. 35

1.5.1 World Heritage and its protection ............................................................ 35

1.5.2 Legal pluralism and the legal systems of Solomon Islands ...................... 38

1.5.3 Heritage protection under customary legal systems ................................. 40

1.5.4 The protection of World Heritage in Solomon Islands and other Pacific Island States ......................................................................................... 43

1.6 Key terminology .................................................................................................. 47

1.6.1 Customary legal systems, customary laws, customs and kastoms ........... 47

1.6.2 Customary protection and traditional protection ...................................... 48

1.6.3 Customary land, customary ownership, and customary owners .............. 49

1.6.4 World Heritage ......................................................................................... 49

1.7 Thesis structure .................................................................................................... 50

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Chapter 2: The Pacific Island context ...................................................................... 55

2.1 Introduction ......................................................................................................... 55

2.2 Pacific Island heritage.......................................................................................... 56

2.2.1 Forms of heritage prevalent in the Pacific region .................................... 57

2.2.2 Threats to Pacific Island heritage ............................................................. 63

2.3 Pacific Island legal systems ................................................................................. 65

2.3.1 The concept of legal pluralism and its application in the Pacific Islands 65

2.3.2 The development of customary legal systems in the Pacific region ........ 68

2.3.3 Colonisation and independence ................................................................ 70

2.3.4 Contemporary ‘customary’ legal systems ................................................ 72

2.3.5 Customary land tenure .............................................................................. 74

2.4 Protection of World Heritage through Pacific Island legal systems .................... 78

2.4.1 World Heritage protection under State legal systems .............................. 78

2.4.2 World Heritage protection under customary legal systems ...................... 83

2.5 Conclusion ........................................................................................................... 85

Chapter 3: The concept of ‘World Heritage’ and its application to Pacific Island heritage .................................................................................................................. 87

3.1 Introduction ......................................................................................................... 87

3.2 The concept of ‘World Heritage’ under the World Heritage Convention ........... 88

3.2.1 A brief history of the development of the World Heritage Convention ... 89

3.2.2 The use of the term ‘heritage’ in the World Heritage Convention ........... 91

3.2.3 The scope of the concept of ‘World Heritage’ ......................................... 93

3.3 The World Heritage Committee’s interpretation of the concept of ‘World Heritage’ .............................................................................................................. 94

3.3.1 The requirements for World Heritage listing under the 2016 Operational Guidelines ........................................................................................ 95

3.3.2 The Committee’s changing approach to Outstanding Universal Value ... 98

3.4 Conclusion ......................................................................................................... 107

Chapter 4: The protection of Pacific Island heritage through the World Heritage Convention regime ...................................................................................................... 109

4.1 Introduction ....................................................................................................... 109

4.2 The protection regime established by the World Heritage Convention ............ 110

4.2.1 Balancing national sovereignty and the international community’s interest in World Heritage protection .................................................................. 110

4.2.2 The role of non-State actors in the Convention regime .......................... 113

4.2.3 The State parties’ duty to protect World Heritage ................................. 115

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4.2.4 The structural elements of the regime: The Committee, the List and the Fund ....................................................................................... 120

4.3 The World Heritage Committee’s approach to the protection of World Heritage .. ......................................................................................................................... 125

4.3.1 The relationship between sustainable development and the protection of heritage ....................................................................................... 125

4.3.2 The rights and roles of local communities in heritage protection .......... 129

4.3.3 Customary protection and management of World Heritage Sites .......... 135

4.4 Conclusion ......................................................................................................... 142

Chapter 5: Solomon Islands’ World Heritage program....................................... 147

5.1 Introduction ........................................................................................................ 147

5.2 Solomon Islands’ early involvement with the World Heritage Convention regime ......................................................................................................................... 148

5.2.1 Solomon Islands’ signature of the World Heritage Convention ............ 148

5.2.2 The nomination of East Rennell for World Heritage listing .................. 149

5.3 The inscription of East Rennell on the World Heritage List ............................. 153

5.3.1 The natural and cultural values of East Rennell ..................................... 153

5.3.2 The boundaries of the World Heritage Site: Linkages between East and West Rennell ....................................................................................... 156

5.3.3 The protection and management of East Rennell under customary and State law ....................................................................................... 158

5.4 Solomon Islands’ implementation of the World Heritage Convention after the inscription of East Rennell ................................................................................. 163

5.4.1 Solomon Islands’ implementation of the World Heritage Convention .. 163

5.4.2 Solomon Islands’ engagement with the World Heritage Convention bodies ....................................................................................... 166

5.4.3 Future World Heritage Sites in Solomon Islands? ................................. 167

5.5 Conclusion ......................................................................................................... 168

Chapter 6: The protection of East Rennell under customary and State legal systems ................................................................................................................ 171

6.1 Introduction ........................................................................................................ 171

6.2 The threats to the World Heritage values of East Rennell ................................. 172

6.2.1 Logging and mining ............................................................................... 173

6.2.2 The over-harvesting of certain species ................................................... 175

6.2.3 Invasive species ...................................................................................... 176

6.2.4 Climate change ....................................................................................... 177

6.3 The protection of East Rennell under the customary legal system .................... 178

6.3.1 Customary laws and World Heritage protection at East Rennell ........... 179

6.3.2 Customary governance and World Heritage protection at East Rennell 183

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6.3.3 The protection of East Rennell under the customary legal system in context ...................................................................................... 186

6.4 The protection of East Rennell under a management plan ................................ 190

6.5 The protection of East Rennell under State legislation ..................................... 194

6.5.1 State laws and World Heritage protection at East Rennell .................... 194

6.5.2 The protection of East Rennell by the State in context .......................... 197

6.6 Conclusion ......................................................................................................... 200

Chapter 7: The protection of Solomon Islands’ World Heritage through the implementation of laws concerning resource use and biosecurity ......................... 203

7.1 Introduction ....................................................................................................... 203

7.2 Protecting World Heritage by regulating the harvesting of protected species .. 205

7.2.1 The scope for World Heritage protection under laws regulating the taking of protected species ................................................................................ 205

7.2.2 Protecting World Heritage through laws regulating the taking of protected species: The legislation in context.......................................................... 208

7.3 Protecting World Heritage by regulating logging and mining .......................... 211

7.3.1 The scope for World Heritage protection under laws regulating the logging and mining industries ............................................................................. 214

7.3.2 Protecting World Heritage through laws regulating logging and mining: The legislation in context ....................................................................... 223

7.3.3 Protecting World Heritage against the impacts of clearing for agriculture .. ...................................................................................... 241

7.4 Protecting World Heritage through biosecurity laws ........................................ 242

7.5 Conclusion ......................................................................................................... 243

Chapter 8: The protection of Solomon Islands’ World Heritage under protected area laws ................................................................................................................ 247

8.1 Introduction ....................................................................................................... 247

8.2 Overview of Solomon Islands’ protected area laws .......................................... 249

8.2.1 Protected area laws based on the fortress approach to conservation ...... 249

8.2.2 Protected areas laws based on the modern approach to conservation .... 250

8.3 The scope for the declaration of World Heritage Sites as protected areas under Solomon Islands’ laws ....................................................................................... 255

8.4 Landowner involvement in the declaration of protected areas .......................... 257

8.5 The ownership of protected areas ...................................................................... 266

8.6 The protection of World Heritage Sites through the rules of protected areas ... 270

8.7 Protected Area governance and the enforcement of the rules of Protected Areas ... ........................................................................................................................ 278

8.8 Conclusion ......................................................................................................... 285

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Chapter 9: Strengthening the protection of World Heritage in Solomon Islands and other Pacific Island States ................................................................................... 291

9.1 Introduction ........................................................................................................ 291

9.2 Strengthening the protection of World Heritage in the Pacific Island States .... 293

9.2.1 Bridging the disconnect between the global and local significance of Pacific World Heritage sites ................................................................... 293

9.2.2 Achieving sustainable development and respecting the rights and roles of local communities in the protection of Pacific World Heritage ............. 295

9.2.3 Improving our understanding of customary protection in the context of the World Heritage Convention ................................................................... 297

9.2.4 Ensuring the Pacific voice continues to be heard ................................... 301

9.2.5 Supporting the protection of World Heritage in the Pacific ................... 302

9.3 Strengthening the protection of World Heritage in Solomon Islands ................ 309

9.3.1 Improving cooperation between Solomon Islands and the Convention bodies in the protection of World Heritage ............................................ 309

9.3.2 Strengthening the protection of East Rennell under State law ............... 312

9.3.3 Supporting the protection of the East Rennell World Heritage Site by the East Rennellese people ........................................................................... 318

9.4 Conclusion ......................................................................................................... 325

Bibliography ................................................................................................................ 327

Appendix: Schedule of interviews ............................................................................. 373

ix

Acknowledgements

First and foremost, I want to say thank you to the people of East Rennell for allowing me

to visit your incredible home, and for your wonderful hospitality. Thank you also to my

colleagues in Solomon Islands, at the Public Solicitor’s Office and Live and Learn

Environmental Education. I owe special thanks to Haikiu Baiabe, for support, advice and

assistance with Live and Learn’s East Rennell project, and to Gwen Tovosia and Anna

Price. I am also grateful to the people working within the Solomon Islands government

who agreed to be interviewed for this research. The wonderful friends I made in Solomon

Islands also deserve a mention – particularly my housemates in Tehamarina, Ngossi and

East Kola. You helped make my time in the Solomons among the most memorable years

of my life.

I am indebted to my principal supervisor, Professor Erika Techera, for her guidance and

advice concerning this research and academia more broadly. Thanks also to my second

supervisor, Associate Professor Catherine Kelly, for your feedback and encouragement.

I also wish to thank Dr Richard Ingleby, whose workshops on research and academic

writing have improved my thesis significantly. In addition, I acknowledge that this

research was supported by an Australian Government Research Training Program (RTP)

Scholarship.

To my fellow PhD students at the UWA Law School – it has been wonderful to share the

PhD rollercoaster with such a great group. Thanks also to my mum, Tricia Price, for

editing my work, and to both my parents (Tricia and Roger) for their unwavering belief

in me. I am also grateful to my brother Ivan for his help preparing the maps in this thesis.

Finally, thank you to my partner Pete for your love, patience and support. To our beautiful

daughter Lily, who was born mid-way through my PhD - thank you for your smiles and

cuddles, and for helping me keep everything in perspective. And to our son Isaac, who

was born shortly before this thesis was submitted, thanks for giving me an extra incentive

to reach the end. I am looking forward to the next chapter of my life with all of you.

xi

List of Abbreviations and Acronyms

CBEM Community Based Environmental Management

CCA Community Conservation Area

Convention World Heritage Convention

Convention bodies

World Heritage Committee and the Advisory Bodies

CRMD Chief Roi Mata’s Doman site (Vanuatu)

EIA Environmental Impact Assessment

ERWHTB East Rennell World Heritage Trust Board

Fisheries MPAs ‘Marine protected areas’ and ‘marine managed areas’ established under the Fisheries Management Act 2015

FRTU Act Forest Resources and Timber Utilisation Act (Cap. 40)

Global Strategy Global Strategy for a Representative, Balanced and Credible World Heritage List

GRLA Gold Ridge Landowners’ Association

ICCA Indigenous and Community Conservation Area

ILO 169 International Labour Organisation’s Indigenous and Tribal Peoples Convention 1989

IUCN International Union for the Conservation of Nature

ICOMOS International Council of Monuments and Sites

ICCROM International Centre for the Study of the Preservation and Restoration of Cultural Property

LALSU Landowners’ Advocacy and Legal Support Unit

LLEE Live and Learn Environmental Education

LMMA Locally Managed Marine Area

LTWHSA Lake Tegano World Heritage Site Association

MM Act Mines and Minerals Act (Cap. 42)

xii

MM Regulations

Mines and Minerals Regulations 1996

MPA Marine Protected Area

Operational Guidelines

Operational Guidelines for the Implementation of the World Heritage Convention

OUV Outstanding universal value

PA Act Protected Areas Act 2010

PA Regulations Protected Areas Regulations 2012

PAAC Protected Areas Advisory Committee

PNG Papua New Guinea

PSO Public Solicitor’s Office (Solomon Islands)

RAMSI Regional Assistance Mission to the Solomon Islands

Resource laws The Forest Resources and Timber Utilisation Act (Cap. 40), the Mines and Minerals Act (Cap. 42), the Environment Act 1998, and provincial business licence ordinances

Resource orders ‘Resource orders’ and ‘resource management orders’ made under provincial ordinances

SIG Solomon Islands government

UNCED United Nations Conference on Environment and Development

UNCHE United Nations Conference on the Human Environment

UNDRIP United Nations Declaration on the Rights of Indigenous People

UNESCO United Nations Educational, Scientific and Cultural Organisation

WH World Heritage

WHC World Heritage Convention

xiii

List of Tables

Page

Table 1 Key features of the World Heritage Convention regime

7

Table 2 Overview of the implementation of the World Heritage Convention by the independent Pacific Island States

17-19

Table 3 Land tenure in the Pacific Island States

75

xv

List of Figures

Page

Figure 1 Map of the independent Pacific Island States

8

Figure 2 Map of Solomon Islands

9

Figure 3 Map of the East Rennell World Heritage site

9

Figure 4 Lake Tegano

10

Figure 5 View from Lake Tegano

11

Figure 6 View from limestone cliffs along the southern coast of East Rennell, looking eastwards over dense forest towards Lake Tegano

11

Figure 7 View from limestone cliffs along the southern coast of East Rennell, looking down on the marine area within the southern side of the World Heritage site

12

Figure 8 Hutuna village, East Rennell World Heritage site

13

Figure 9 Nuipani village, East Rennell World Heritage site

14

Figure 10 Regional distribution of World Heritage sites

22

Figure 11 The author discussing a logging application with community members in central Rennell in February 2012

31

Figure 12 The author and Haikiu Baiabe assisting with general meetings of the Lake Tegano World Heritage Site Association in September 2013, as part of Live and Learn Environmental Education’s protected area project

31

Figure 13 Map of the Pacific showing geo-cultural regions (Melanesia, Polynesia and Micronesia)

60

Figure 14 Tourist accommodation, East Rennell World Heritage site

187

Figure 15 Aerial view of the south-eastern end of Rennell, showing limestone cliffs dropping to the sea along much of the coast

188

xvi

Figure 16 The road linking the capital of Rennell (Tigoa) and the East Rennell World Heritage site

189

Figure 17 One of many flat tyres experienced on the journey from the airstrip in the capital of Rennell (Tigoa) to the East Rennell World Heritage site

189

Figure 18 A community meeting in Hutuna village in September 2013 to discuss the potential for East Rennell to be protected under the Protected Areas Act 2010

253

1

PART 1

INTRODUCTION

3

Chapter 1: Introduction

1.1 Introduction

The independent Pacific Island States1 are home to a diverse array of heritage sites. These

include impressive marine and terrestrial ecosystems, sites evidencing the settlement of

the region and the development of island societies, and places of significance due to their

connection with the traditions, customary knowledge, and practices of Pacific Islanders.

Eight sites within these States have been inscribed on the World Heritage (WH) List,2

including East Rennell in Solomon Islands, which is the focus of this research. That site

is under customary tenure, and is owned and occupied by the people of East Rennell. It

was the first listed WH site in the Pacific Islands, and the first place anywhere in the world

to be listed based on its natural heritage values and customary protection. Consequently,

its inclusion in the WH List was heralded as a landmark in the implementation of the

World Heritage Convention3 (the Convention), which established an important precedent

concerning the acceptance of customary law as a sufficient basis for the protection of

natural WH sites.4

However, East Rennell is now on the List of WH in Danger, threatened by the impacts of

extractive industries, invasive species, climate change, and the over-harvesting of certain

animals.5 Addressing these threats is likely to require a range of actions, including

strengthening the protection that the site enjoys under law. Furthermore, there is a need

to ‘identify and communicate lessons learnt’ from East Rennell,6 to assist with the

implementation of the Convention at similar sites.

The Convention requires State parties to undertake the legal measures needed to protect

their WH,7 but does not mandate any form of legislation that must be implemented. It

therefore allows State parties to tailor their WH protection laws to suit their context. This

1 Cook Islands, Federated States of Micronesia, Fiji, Kiribati, Marshall Islands, Nauru, Niue, Palau, Papua New Guinea, Samoa,

Solomon Islands, Tonga, Tuvalu, Vanuatu. 2 See Table 2. 3 Convention Concerning the Protection of the World Cultural and Natural Heritage, opened for signature 16 November 1972,

1037 UNTS 151 (entered into force 17 December 1975) (‘World Heritage Convention’). 4 T Badman et al, Outstanding Universal Value: Standards for Natural World Heritage (IUCN, 2008) 24. 5 See, eg, Paul Dingwall, Report on the Reactive Monitoring Mission to East Rennell, Solomon Islands, 21 – 29 October 2012

(IUCN, 2013). The threats to East Rennell are explained in 6.2. 6 Badman et al, above n 4, 25. 7 World Heritage Convention arts 4-5.

4

creates a substantial opportunity for the Convention to be utilised by Pacific Island States

to protect their WH in a manner that is consistent with the nature of their heritage, their

land tenure, and their legal systems. Despite this however, developing and implementing

effective laws remains challenging for many Pacific countries, including Solomon

Islands. If East Rennell is to retain its WH listing, it is imperative that its legal protection

be improved. In addition, if the representation of Pacific heritage on the WH List is to

increase, and if the Convention is to be successfully utilised to conserve significant sites

in the region, greater understanding of its implementation in the Pacific context is

required.

The aim of this research is therefore to identify options that could strengthen the legal

protection of WH in Solomon Islands and other Pacific Island States sharing similar

characteristics. This is achieved firstly by investigating key characteristics of Pacific

Island States and the Convention regime, to assess the potential for Pacific heritage to be

recognised and protected under that law. Secondly, the opportunities and challenges

associated with the legal protection of WH in Solomon Islands are explored. This involves

critically analysing the nomination and inscription of East Rennell on the WH List, as

well as the legal and practical issues affecting the site’s protection under customary and

State legal systems. From that analysis, options for improving the protection of WH under

law have been identified. The research could inform the development of measures to

address the threats to East Rennell, which is necessary if the site is to be removed from

the List of WH in Danger. More broadly, the lessons learned from Solomon Islands’

experience could be utilised by other Pacific Island States and organisations to improve

their efforts to implement the Convention.

1.2 Introduction to the World Heritage Convention regime and its

implementation in the Pacific region

1.2.1 The World Heritage Convention regime

The Convention was adopted by the General Conference of the United Nations

Educational, Scientific and Cultural Organisation (UNESCO) in November 1972. Among

other things, it was a response to growing international concern about the impacts of

human activities on cultural sites and wilderness areas, as well as increasing appreciation

5

of the interrelationship between culture and nature, and the need to preserve heritage for

future generations (see 3.2.1 for further discussion).

The drafters of the Convention intended that it would apply to sites of significance to

humankind, rather than places possessing only local or national significance.8 Thus,

pursuant to the Convention, the concept of ‘WH’ is restricted to sites that have

‘outstanding universal value’ (OUV).9 State parties have the primary responsibility for

safeguarding such places, and must take ‘effective and active’ measures to achieve that

end.10 However, as the deterioration of WH constitutes a ‘harmful impoverishment of the

heritage of all the nations of the world’,11 the Convention also establishes a system of

international assistance to help State parties comply with their duties.12

The Convention has never been amended, and this would be a ‘long and risky’ task13 as

there are now 192 State parties.14 Despite this, the Convention regime has evolved,

because the Convention document itself only establishes a framework. It creates the key

structural elements of the regime, namely:

the WH Committee (an executive decision-making body comprising 21 State

parties);

the WH List (a list of sites that the WH Committee considers have OUV); and

the WH Fund (a fund administered by the WH Committee, used to assist State

parties and others to identify and protect WH). (See Table 1 for further details).

However, the Convention gives the WH Committee and State parties substantial

discretion to determine how it should be implemented.

To facilitate the implementation of the Convention, the WH Committee has adopted the

Operational Guidelines for the Implementation of the World Heritage Convention (the

Operational Guidelines).15 That document prescribes procedures concerning matters such

8 Sarah M Titchen, ‘On the Construction of ‘Outstanding Universal Value’: Some Comments on the Implementation of the

1972 UNESCO World Heritage Convention’ (1996) 1 Conservation and Management of Archaeological Sites 235, 236. 9 World Heritage Convention arts 1, 2. 10 Ibid arts 4-5. 11 Ibid preamble para 2. 12 Ibid arts 6-7. 13 Ian Strasser, ‘Putting Reform into Action: Thirty Years of the World Heritage Convention: How to Reform a Convention

without Changing its Regulations’ (2002) 11(2) International Journal of Cultural Property 215, 233. 14 UNESCO, State Parties Ratification Status <http://whc.unesco.org/en/statesparties/>. 15 UNESCO, Operational Guidelines for the Implementation of the World Heritage Convention, UN Doc WHC.16/01 (26

October 2016) (‘Operational Guidelines 2016’). For an explanation of the history of the Operational Guidelines, see Sarah M Titchen, On the Construction of Outstanding Universal Value: UNESCO’s World Heritage Convention (Convention

6

as the preparation of nominations for the WH List,16 monitoring and reporting,17 and the

provision of international assistance to State parties.18 Importantly, the Operational

Guidelines also prescribe the requirements that a site must meet before the Committee

will consider it eligible for WH listing.19 These requirements require consideration of the

site’s value and significance, as well as its protection and management.20 When the

Committee decides to inscribe a property on the WH List, it adopts a ‘Statement of

Outstanding Universal Value’ for the site, which is intended to become the basis for the

future protection of the site.21

Although the Operational Guidelines are not legally binding, they are critically important

because they underlie much of the Committee’s decision-making.22 By amending the

Operational Guidelines, the Committee has been able to influence how the Convention is

implemented in response to changes in the international community’s views towards

heritage and its protection.23 As will be explored in chapters 3 and 4, through this process

the Convention regime has evolved to better facilitate the recognition and conservation

of Pacific heritage.

Concerning the Protection of the World Cultural and Natural Heritage, 1972) and the Identification and Assessment of Cultural Places for Inclusion in the World Heritage List (PhD Thesis, Australian National University, 1995) 104-108.

16 Operational Guidelines 2016, UN Doc WHC.16/01, part III.A. 17 Ibid parts IV-V. 18 Ibid part VII. 19 Ibid part II. 20 Ibid paras 77-78. The requirements for WH listing are analysed at 3.3 and 4.3.3 of this thesis. 21 Ibid paras 154-155. 22 See, eg, Strasser, above n 13, 245-246. 23 See, eg, Titchen, above n 8, 240; Sophia Labadi, UNESCO, Cultural Heritage and Outstanding Universal Value (AltaMira

Press, 2013) 31; Lynn Meskell, ‘UNESCO’s World Heritage Convention at 40: Challenging the Economic and Political Order of International Heritage Conservation’ (2013) 54(4) Current Anthropology 483, 486.

7

Table 1: Key features of the World Heritage Convention regime

Feature of the regime

Explanation

World Heritage

Sites (including monuments, groups of buildings, and natural features) that meet the definition of ‘cultural heritage’ and/or ‘natural heritage’ in Articles 1 and 2 of the Convention. Essentially these definitions say that sites are ‘WH’ if they have OUV. The Operational Guidelines prescribe several criteria and requirements a site must meet to be deemed to have OUV.24

The World Heritage Committee

An executive body established under the Convention, comprising 21 State parties elected for 6 year terms.25 The Committee’s decision-making powers include determining whether sites should be inscribed on the WH List26 or the List of WH in Danger,27 whether States should receive international assistance,28 and administering the WH Fund.29 The Committee also examines the state of conservation of listed WH sites through a monitoring and reporting system.30

The World Heritage List

A list of sites that the WH Committee considers meet the definition of WH.31 Before a site can be listed, it must be nominated by the State party within which it is located.32 It must also have been included in the State party’s Tentative List.33

Tentative List A national inventory prepared by a State party and submitted to the WH Committee, of the WH within the State.34

The List of World Heritage in Danger

A list of sites on the WH List compiled by the WH Committee, which are threatened by serious and specific dangers and which require major operations in order to be conserved.35

The World Heritage Fund

A fund established under the Convention, comprising (among other things) compulsory and voluntary contributions from the State parties.36 The WH Committee determines how the resources in the fund are spent.

The Advisory Bodies

The International Centre for the Study of the Preservation and Restoration of Cultural Property (ICCROM), the International Council of Monuments and Sites (ICOMOS) and the International Union for Conservation of Nature and Natural Resources (IUCN).37 They monitor the state of conservation of sites on the WH List,38 and (in the case of ICOMOS and IUCN) make recommendations to the WH Committee concerning properties nominated for inclusion on that list.39

24 Operational Guidelines 2016, UN Doc WHC.16/01, parts II.D-II.F. 25 World Heritage Convention arts 8(1), (9(1)); Operational Guidelines 2016, UN Doc WHC.16/01, part I.E. 26 World Heritage Convention art 11(2); Operational Guidelines 2016, UN Doc WHC.16/01, para 24(a). 27 World Heritage Convention art 11(4); Operational Guidelines 2016, UN Doc WHC.16/01, para 24(c). 28 World Heritage Convention art 13(3); Operational Guidelines 2016, UN Doc WHC.16/01, part VII. 29 World Heritage Convention art 13(6); Operational Guidelines 2016, UN Doc WHC.16/01, para 24(f), part VII. 30 World Heritage Convention arts 11(7), 29; Operational Guidelines 2016, UN Doc WHC.16/01, para 24(b), part IV. 31 World Heritage Convention art 11(2); Operational Guidelines 2016, UN Doc WHC.16/01, part II. 32 World Heritage Convention art 11(2). 33 Operational Guidelines 2016, UN Doc WHC.16/01, para 63. 34 World Heritage Convention art 11(1); Operational Guidelines 2016, UN Doc WHC.16/01, para II.C. 35 World Heritage Convention art 11(4); Operational Guidelines 2016, UN Doc WHC.16/01, part IV.B. 36 World Heritage Convention art 15; Operational Guidelines 2016, UN Doc WHC.16/01, part VII. 37 World Heritage Convention art 8(3); Operational Guidelines 2016, UN Doc WHC.16/01, para 30. 38 World Heritage Convention art 14(2); Operational Guidelines 2016, UN Doc WHC.16/01, para 31(d). 39 Operational Guidelines 2016, UN Doc WHC.16/01, para 31(e).

8

1.2.2 World Heritage in Solomon Islands: The listing and protection of the East

Rennell World Heritage Site

Solomon Islands is an independent Pacific Island nation, comprising around 1,000 islands

stretching across 1,450km between Bougainville and the northern islands of Vanuatu (see

Figures 1 and 2). It became a signatory to the Convention in 1992, and East Rennell (its

only listed WH site) was listed in 1998.40 The site encompasses the southern third of the

island of Rennell, which is located 236km south of Honiara (the nation’s capital), within

the Rennell and Bellona province. It also includes the area extending three nautical miles

into the sea (see Figure 3).

Figure 1: Map of the independent Pacific Island States Map made with data from Natural Earth. Free vector and raster map data @ naturalearthdata.com.

40 WHC Res CONF 203 VIII.A.1, WHC 22nd sess, UN Doc WHC-98/CONF/203/18 (29 January 1999) 25.

9

Figure 2: Map of Solomon Islands Map made with data from Natural Earth. Free vector and raster map data @ naturalearthdata.com.

Figure 3: Map of the East Rennell World Heritage Site Source: Laurie Wein, East Rennell World Heritage Site Management Plan (Solomon Islands National Commission for UNESCO, 2007)

10

Rennell is a raised coral atoll, the dominant feature of which is the brackish Lake Tegano,

which covers almost 18% of the island.41 Apart from the lake, the island is mostly covered

with dense forest that is home to several endemic plant and animal species42 (see Figures

4 – 7).

Figure 4: Lake Tegano (Stephanie Price, 2013)

41 See, eg, Elspeth J Wingham, Nomination of East Rennell, Solomon Islands by the Government of Solomon Islands for Inclusion

in the World Heritage List Natural Sites (1997) 10. 42 Ibid 13.

11

Figure 5: View from Lake Tegano (Stephanie Price, 2012)

Figure 6: View from limestone cliffs along the southern coast of East Rennell, looking eastwards over dense forest towards Lake Tegano (Michael Woodward, 2011)

12

Figure 7: View from limestone cliffs along the southern coast of East Rennell, looking down on the marine area within the southern side of the World Heritage site (Michael Woodward, 2011)

13

East Rennell is under customary tenure, and is owned and occupied by the East

Rennellese people pursuant to their customary land tenure system. Their ancestors arrived

on the island from the Wallis and Futuna Group43 and thus the East Rennellese are of

Polynesian descent. Today, approximately 750 people live within the WH site,44 mainly

in four villages located on the southern boundary of the lake (see Figures 3, 8 and 9).

They live predominantly subsistence lifestyles, relying on fish from the lake and sea, and

resources from the forests and their gardens.45 As will be explained throughout this thesis,

the conservation of the WH site is intrinsically linked with their customs and livelihoods.

Figure 8: Hutuna village, East Rennell World Heritage site (Stephanie Price, 2012)

43 Ibid 23. 44 Solomon Islands Government, Volume I Report on 2009 Population and Housing Census: Basic Tables and Census

Description, Statistical Bulletin 6/2012 (Solomon Islands Government, 2012) 24. Population estimates for the site do however vary, possibly reflecting permanent and/or temporary migration away from the site. The site’s WH nomination dossier stated that in 1997 the population was approximately 1,500 but declining: see Wingham, above n 41, 26. IUCN’s estimate in its review of the nomination dossier was 800: see IUCN, Evaluations of Nominations of Natural and Mixed Properties to the World Heritage List, WHC 22nd sess (1998) 79 (‘IUCN Evaluation of East Rennell Nomination’) 80. Wein estimated the population at 700: see Laurie Wein, East Rennell World Heritage Site Management Plan (Solomon Islands National Commission for UNESCO, 2007) 12. Anita Smith has estimated the population at around 700 people: see Anita Smith, ‘East Rennell World Heritage Site: Misunderstandings, Inconsistencies and Opportunities in the Implementation of the World Heritage Convention in the Pacific Islands’ (2011) 17(6) International Journal of Heritage Studies 592, 594. Gabrys and Heywood stated that the population was approximately 600 people: see Kasia Gabrys and Mike Heywood, ‘Community and Governance in the World Heritage Property of East Rennell’ in Anita Smith (ed), World Heritage in a Sea of Islands: Pacific 2009 Programme, World Heritage Papers 34 (UNESCO, 2012) 60, 60. The Statement of OUV for the site adopted by the WH Committee in 2012 says the population is approximately 1,200: see Adoption of Retrospective Statements of Outstanding Universal Value, WHC 36th sess, UN Doc WHC-12/36.COM/8E (15 June 2012) 55-6; WHC Res 36 COM 8E, WHC 36th sess, UN Doc WHC-12/36.COM/19 (June-July 2012) 225.

45 See, eg, Wingham, above n 41, 27.

14

Figure 9: Nuipani village, East Rennell World Heritage site (Stephanie Price, 2013)

East Rennell was inscribed on the WH List as a ‘natural’ site. The Committee considered

that it warranted listing due to the island’s role as a ‘stepping stone in the migration and

evolution of species in the region’, and because of the speciation processes that have

occurred there.46 The cultural heritage values associated with the site were not recognised

in the listing, which has ongoing implications for the site’s protection (discussed further

in chapter 5).

In deciding to inscribe East Rennell, the Committee considered that the ‘protection and

management’ requirements for WH listing were met because the site was under

customary tenure, and its natural environment enjoyed protection under the customary

legal system of the East Rennellese people.47 To supplement this customary protection,

46 Adoption of Retrospective Statements of Outstanding Universal Value, WHC 36th sess, UN Doc WHC-12/36.COM/8E (15

June 2012) 55-6 (East Rennell, Solomon Islands); WHC Res 36 COM 8E, WHC 36th sess, UN Doc WHC-12/36.COM/19 (June-July 2012) 225. The listing of East Rennell is analysed in chapter 5.

47 WHC Res 36 COM 8E, WHC 36th sess, UN Doc WHC-12/36.COM/19 (June-July 2012) 225. See 1.6.1 for discussion of the meaning of the term ‘customary legal system’.

15

the Committee called upon the Solomon Islands government (SIG) to implement a

management plan and legislation to ensure the long-term conservation of the area.48

Since East Rennell was included in the WH List, the threats to the site’s natural

environment have increased (see chapter 6). The area is now threatened by logging and

mining, which is being carried out in West Rennell49 and which may commence within

the WH site boundaries in the near future.50 Invasive species, climate change and the

over-harvesting of coconut crabs and marine species, could also damage the site’s OUV.51

As will be explained in chapter 6, at present it appears that customary protection is unable

to protect the site’s WH values from these threats. Furthermore, although the site now has

a management plan52 and some protection under State legislation, it has been put on the

List of WH in Danger.53 Safeguarding East Rennell’s OUV in the long term will require

a range of actions, including strengthening the protection of the site under law.

1.2.3 World Heritage in the Pacific Island States: The implementation of the

Global Strategy

East Rennell was inscribed on the WH List in the context of the Global Strategy for a

Representative, Balanced and Credible World Heritage List (the ‘Global Strategy’),

which was adopted by the Committee in 1994 in response to growing concern about the

under-representation of certain regions and types of heritage sites on the WH List.54 The

Global Strategy is a framework and operational methodology for the implementation of

the Convention. It aims to create a more representative and balanced WH List by, among

other things, encouraging States in under-represented regions to sign the Convention, and

to prepare Tentative Lists and nominations that will help fill the gaps in the List.55 The

Global Strategy also led the Committee to adopt a priority system for its assessment of

nominations, favouring nominations that will improve the balance of the WH List.56 The

48 Ibid. 49 The term ‘West Rennell’ is used here to describe all parts of the island of Rennell other than East Rennell. 50 See, eg, Dingwall, above n 5, 4. 51 Ibid 13-24. 52 Wein, above n 44. 53 The Committee placed the site on the List of WH in Danger in 2013: see WHC Res 37 COM 7B.14, WHC 37th sess, UN Doc

WHC-13/37.COM.20 (5 July 2013) 68. The site has been retained on that list at all subsequent meetings, including the most recent (2016) meeting: see WHC Res 40 COM 7A.49, WHC 40th sess, UN Doc WHC/16/40.COM/19 (15 November 2016) 69.

54 WHC Res CONF 003 X.10, WHC 18th sess, UN Doc WHC-94/CONF.003/16 (31 January 1995) 41-44. See also Operational Guidelines 2016, UN Doc WHC.16/01, paras 55-58.

55 Operational Guidelines 2016, UN Doc WHC.16/01, para 60. 56 Ibid para 61.

16

Pacific has always been under-represented on the WH List, so it is a focus of the Global

Strategy.

The Global Strategy has had some positive outcomes for the Pacific region. As explored

in chapters 3 and 4, it contributed to the Committee broadening its interpretation of the

concept of WH, which has made the WH List more open to the diverse heritage sites that

exist around the world. This includes ‘cultural landscapes’ (sites that reflect the

interaction between humans and their environment), which are common in the Pacific,

and are now recognised as a category of WH site.57 The Global Strategy also encouraged

the acceptance of different models of WH protection such as that offered by customary

tenure,58 which is significant in the Pacific where there is a high percentage of customary

land.

More generally, workshops and studies conducted as part of the Global Strategy increased

awareness of and interest in the Convention regime in the Pacific. Twelve of the 14

independent Pacific Island States are now signatories, and eight sites within these

countries have been listed (see Table 2). In addition, the Global Strategy created impetus

for the development of the Pacific 2009 World Heritage Programme, which was adopted

by the Committee in 2003.59 This programme was a significant development as it was the

first initiative specifically focused on WH in the region. It provided a framework for

efforts to improve implementation of the Convention by Pacific Island States, including

through awareness raising and capacity building.60 As a follow up to this programme, an

action plan for implementation of the Convention in the Pacific for the period 2010-2015

was prepared.61 That has now been superseded by the Pacific World Heritage Action Plan

2016 – 2020,62 adopted by representatives of Pacific Island nations at a regional WH

meeting in Fiji in 2015. It provides strategic guidance by specifying regional and national

actions designed to address the challenges associated with identifying and protecting

Pacific WH.

57 Ibid para 47. 58 Badman et al, above n 4, 27. 59 WHC Res 27 COM 6A, WHC 27th sess, UN Doc WHC-03/27.COM/24 (10 December 2003) 7, 8. For a discussion of the

history of the Pacific Programme, see Smith, Anita, ‘The World Heritage Pacific 2009 Programme’ in Anita Smith (ed), World Heritage in a Sea of Islands: Pacific 2009 Programme, World Heritage Papers 34 (UNESCO, 2012) 2.

60 UNESCO, World Heritage – Pacific 2009 Programme <http://whc.unesco.org/en/pacific2009>. 61 Pacific World Heritage Action Plan 2010 – 2015 (2010). 62 Pacific World Heritage Action Plan 2016 – 2020 (2016).

17

Table 2: Overview of the implementation of the World Heritage Convention by the independent Pacific Island States63

State party Date of signature of the Convention

Name of World Heritage Site

Year of inscription on the World Heritage List

Cultural, natural or mixed site

Relevant criteria (para 77 of the 2016 Operational Guidelines)

Brief summary of the site’s World Heritage values Land tenure and human occupation of the World Heritage site

Cook Islands 2009 - - - - - -

Federated States of Micronesia

2002 Nan Madol: Ceremonial Centre of Eastern Micronesia

2016 Cultural (i), (iii), (iv) and (vi)

Comprises more than 100 islets containing the remains of stone palaces, temples, tombs and residential domains built between 1200 and 1500. Evidence of the complex social and religious practices of island societies during that time.

Customary tenure. Uninhabited.64

Fiji 1990 Levuka Historical Port Town

2013 Cultural (ii) and (iv) First colonial capital of Fiji. Example of the architecture of European colonisation. Demonstrates interactions between Pacific islanders and colonisers that occurred as part of colonisation process.

5.95ha privately owned freehold land, 0.5 ha owned by the State.65

Kiribati 2000 Phoenix Islands Protected Area

2010 Natural (vii) and (ix) Comprises over 400,000 sqkm of marine and terrestrial habitats. A relatively pristine mid-ocean environment, hosting high marine biodiversity. Contains numerous sea mounts, and is a breeding site for many species.

State owned. No permanent inhabitants. About 50 people live there, associated with park management.66

63 Except if otherwise referenced, information for this table is drawn from UNESCO, World Heritage List <http://whc.unesco.org/en/list>; UNESCO, State Parties Ratification Status

<http://whc.unesco.org/en/statesparties/>. 64 ICOMOS, Evaluations of Nominations of Cultural and Mixed Properties to the World Heritage List, WHC 40th sess, UN Doc WHC/16/40.COM/INF.8B1 (July 2016) 103 (Nan Madol, Federated States of Micronesia,

Advisory Body Evaluation 1503) 107. 65 Republic of Fiji, Nomination of Levuka Historical Port Town to the World Heritage List (2013) 213. 66 Government of Kiribati, Phoenix Islands Protected Area, Kiribati, Nomination for a World Heritage Site 2009 (2009) 13, 115.

18





Relevant WH criteria (para 77 of the 2016 Operational Guidelines)


Marshall Islands

2002 Bikini Atoll Nuclear Site

2010 Cultural (iv) and (vi) Provides tangible evidence of the birth of the Cold War and the nuclear arms race. Demonstrates the effect of nuclear testing on island populations.

Customary ownership. State owns area below high water mark. 25 inhabitants.67

Nauru - - - - -

-

Niue 2001 - - - -

-

Palau 2002 Rock Islands Southern Lagoon

2012 Mixed (iii), (v), (vii), (ix) and (x)

A large lagoon including 445 islands. Remains of burial sites and rock art bear testimony to the island communities that existed there over some three millennia. Has high conservation value because of its spectacular marine and terrestrial biodiversity.

Under customary tenure. Ownership of the site has been the subject of several court cases. No permanent inhabitants.68

Papua New Guinea

1997 Kuk Early Agricultural Site

2008 Cultural (iii) and (iv)

Comprises archaeological evidence of transformation of agricultural practices around 6,500 years ago.

Customary tenure. Subject to government lease. Approximately 150 inhabitants.69

67 Republic of the Marshall Islands, Bikini Atoll Nomination by the Republic of the Marshall Islands for Inscription on the World Heritage List (2010) 64-65. This nomination dossier states that most Bikinians were

relocated from the site before it was used to conduct nuclear tests from 1946: at 58. 68 Republic of Palau, The Rock Islands Southern Lagoon Nomination for Inscription on the World Heritage List (2012) 91, 105-107. 69 Government of Papua New Guinea, Kuk Early Agricultural Site Cultural Landscape - A Nomination for Consideration as World Heritage Site (2007) 29, 60-62.

19





Relevant WH criteria (para 77 of the 2016 Operational Guidelines)


Samoa 2001 - - - - - -

Samoa 2001 - - - - - -

Solomon Islands

1992 East Rennell 1998 Natural (ix) Encompasses Lake Tegano (the largest lake in the insular Pacific), dense forest and a marine area. An important site for the study of island biogeography because of the speciation processes that have occurred there. Hosts several endemic species.

Customary tenure.70 Approximately 750 inhabitants.71

Tonga 2004 - - - - - - Tuvalu - - - - - - - Vanuatu 2002 Chief Roi

Mata’s Domain

2008 Cultural (iii), (v) and (vi)

Cultural landscape comprising three sites associated with the life and death of the last Paramount Chief of Roi Mata. Reflects the continuing chiefly system, and the connection between people and their environment.

Customary land. No residents within WH site. Around 670 residents in the buffer zone around the site.72

70 Wingham, above n 41, 5. 71 See above n 44. 72 Republic of Vanuatu, Chief Roi Mata’s Domain – Nomination by the Republic of Vanuatu for Inscription on the World Heritage List (2007) 93, 96.

20

Despite the successes of the Global Strategy, imbalances in the WH List have increased

since it was adopted.73 Today less than 1% of all listed WH sites are located in the

independent Pacific Island States (see Figure 10). While a perfect regional balance is

neither desirable nor achievable,74 the magnitude of the imbalance suggests that

impediments to the listing of Pacific sites remain.

Several factors influence the composition of the WH List including the politicisation of

the listing process75 and the composition of the Committee.76 Fundamentally however,

the Pacific is under-represented because sites can only be listed if they are first nominated

by the relevant State party,77 and to date the rate of nomination by Pacific nations has

been low. A key reason for this is that economic and social development is a higher

priority than heritage conservation in many Pacific Island States, particularly those such

as Solomon Islands that are classified as ‘Least Developed Countries’ (see 2.4.1). In

addition, most Pacific countries only signed the Convention within the last 15 years (see

Table 2), giving them less time than others to prepare nominations. They have also (at

least historically) had less interest and involvement in the Convention regime, in part

because they were not involved with its drafting (see 3.2.1). The lack of expert resources

including comprehensive inventories of Pacific heritage places also impedes the

development of nominations.78 While two thematic studies conducted as part of the

Global Strategy have alleviated this lack of literature,79 many Pacific Island governments

still lack the resources to prepare a nomination dossier with the requisite level of detail.80

73 See, eg, Lasse Steiner and Bruno S Frey, ‘Correcting the Imbalance of the World Heritage List: Did the UNESCO Strategy

Work?’ (2012) 3 Journal of International Organisation Studies 25, 38; Lynn Meskell, Claudi Liuzza and Nicholas Brown, ‘World Heritage Regionalism: UNESCO from Europe to Asia’ (2015) 22 International Journal of Cultural Property 437, 438.

74 ICOMOS, The World Heritage List: Filling the Gaps – An Action Plan for the Future (ICOMOS, 2004) 19; Joint ICOMOS-IUCN Paper and Papers by ICOMOS and IUCN on the Application of the Concept of Outstanding Universal Value, WHC 30th sess, UN Doc WHC-06/30.COM/INF (29 June 2006) 12, 38.

75 See, eg, Craig Forrest, International Law and the Protection of Cultural Heritage (Routledge, 2011) 247; Lynn Meskell, ‘The Rush to Inscribe: Reflections on the 35th Session of the World Heritage Committee, UNESCO Paris, 2011’ (2012) 37(2) Journal of Field Archaeology 145; Bruno S Frey, Paolo Pamini and Lasse Steiner, ‘Explaining the World Heritage List: An Empirical Study’ (2013) 60 International Review of Economics 1; Lynn Meskell, ‘States of Conservation: Protection, Politics and Pacting within UNESCO’s World Heritage Committee’ (2014) 87(1) Anthropological Quarterly 217; Enrico E Bertacchini and Donatella Saccone, ‘Toward a Political Economy of World Heritage’ (2012) 36 Journal of Cultural Economics 327.

76 See, eg, Lynn Meskell, ‘UNESCO’s World Heritage Convention at 40: Challenging the Economic and Political Order of International Heritage Conservation’ (2013) 54(4) Current Anthropology 483, 489; Bruno S Frey and Lasse Steiner, ‘World Heritage List: Does it Make Sense?’ (2011) 17(5) International Journal of Cultural Policy 555, 560.

77 World Heritage Convention art 11(3). 78 Anita Smith, ‘Context for the Thematic Study’ in Anita Smith and Kevin L Jones (eds), Cultural Landscapes of the Pacific

Islands (ICOMOS, 2007) 5, 5. 79 The two thematic studies are: Anita Smith and Kevin L Jones (eds), Cultural Landscapes of the Pacific Islands (ICOMOS,

2007); Ian Lilley (ed), Early Human Expansion and Innovation in the Pacific: Thematic Study (ICOMOS, 2010). 80 The requirements for a nomination dossier are prescribed in the Operational Guidelines 2016, UN Doc WHC.16/01, part III.B,

annex 5. As noted by Bertacchini and Saccone, preparing nomination dossiers is very costly: see Enroci E Bertacchini and Donatella Saccone, ‘Toward a Political Economy of World Heritage’ (2012) 36(4) Journal of Cultural Economics 327, 331.

21

Another likely contributor to the low rate of nominations is that many Pacific Island States

lack strong legal frameworks for heritage protection.81 To be eligible for WH listing, the

Committee considers that a site must be adequately managed and protected.82 While the

Committee now recognises that a site may meet this requirement because of its customary

protection,83 a customary system is seldom able to deal with all contemporary threats to

a site’s WH values.84 Consequently, in practice, additional measures, including State

legislation, will often be required to safeguard the site. The lack of effective heritage

legislation in many Pacific Island States thus contributes to the region’s under-

representation on the WH List, as well as directly hampering protection at a local level.

The Pacific 2009 World Heritage Programme aims to build the capacity of Pacific Island

States to implement the Convention. However, it has not yet substantially improved ‘the

institutional capacity of Pacific Island governments to protect and manage their heritage

or to support customary owners to do so’.85 In recognition of this, increasing the

effectiveness and coordination of policy and legislation for WH protection remains one

of the aims of the Pacific World Heritage Action Plan 2016 – 2020.86 This highlights the

importance of the present research, which seeks to identify options for strengthening the

legal protection of WH in the region.

81 Smith, above n 78, 5; Anita Smith, ‘Building Capacity in Pacific Island Heritage Management: Lessons from Those Who

Know Best’ (2007) 3(3) Archaeologies 335, 347. 82 Operational Guidelines 2016, UN Doc WHC.16/01, paras 78, 97. 83 Ibid para 97. The Committee’s decision to recognise customary protection of WH sites is analysed in 4.3.3. 84 See, eg, Smith, above n 59, 5; Chris Ballard and Meredith Wilson, ‘Unseen Monuments: Managing Melanesian Cultural

Landscapes’ in Ken Taylor and Jane L Lennon (eds), Managing Cultural Landscapes (Routledge, 2012) 130, 132; Pepe Clarke and Charles Taylor Gillespie, Legal Mechanisms for the Establishment and Management of Terrestrial Protected Areas in Fiji (IUCN, 2009) 2.

85 Anita Smith, ‘East Rennell World Heritage Site: Misunderstandings, Inconsistencies and Opportunities in the Implementation of the World Heritage Convention in the Pacific Islands, (2011) 17(6) International Journal of Heritage Studies 592, 604.

86 Pacific World Heritage Action Plan 2016 – 2020 (2016) 7.

22

Figure 10: Regional distribution of World Heritage sites Data sourced from UNESCO, World Heritage List Statistics <http://whc.unesco.org/en/list/stat#s1>

23

1.2.4 Strengthening the protection of World Heritage in Solomon Islands and

other Pacific Island States

The Pacific Island States have a history of regional cooperation, as evidenced by

numerous regional organisations87 and treaties.88 Pacific regionalism presents a

significant opportunity for strengthening WH protection. It has been fostered by meetings

and workshops held in the Pacific as part of the implementation of the Global Strategy,

which have provided Pacific islanders with opportunities to meet and discuss common

issues.89 Importantly, regional cooperation has enabled the Pacific Island States to

articulate their views to the Committee more forcefully, which may have influenced its

views concerning the meaning of WH and its protection.

The most significant example of this was the Pacific Appeal, which was presented to the

WH Committee by representatives of the Pacific Island States in 2007.90 That document

brought the vision of Pacific islanders concerning their heritage and the Convention to

the world stage. It explained that the Pacific ‘contains a series of spectacular and highly

powerful spiritually-valued natural features and cultural places’, unlike other regions

which comprise extensive monumental heritage.91 Furthermore, Pacific islander heritage

is ‘holistic, embracing all life, both tangible and intangible’ and is understood through

cultural traditions.92 The implementation of the Convention in the region must be

considered in the context of these types of heritage places. Importantly, the Pacific Appeal

also highlighted that the protection of this heritage ‘must be based on respect for and

understanding and maintenance of the traditional cultural practices, indigenous

knowledge and systems of land and sea tenure’ in the region.93 This includes recognition

of customary legal systems, which continue to govern many aspects of the lives of Pacific

islanders. Those systems not only form part of the heritage of the Pacific, they have also

87 There are now more than 300 regional organisations in the Pacific focused on a range of issues including economic, religious,

commercial, educational, technical, professional, cultural, sporting and environmental issues: Ron Crocombe, The South Pacific (University of the South Pacific, 2001) 591.

88 See, eg, Convention for the Protection of Natural Resources and Environment of the South Pacific Region (Noumea Convention), opened for signature 25 November 1986, 26 ILM 38 (entered into force 22 August 1990); Convention on Conservation of Nature in the South Pacific (Apia Convention), opened for signature 12 June 1976, [1990] ATS 41 (entered into force 28 June 1990).

89 For example, the regional WH workshop held in Suva, Fiji in December 2015. For details of other meetings and workshops, see, eg, Smith, above n 59.

90 Presentation of the World Heritage Programme for the Pacific, WHC 31st sess, UN Doc WHC-07/31.COM/11C (10 May 2007) annex I (Appeal to the World Heritage Committee from the Pacific Island State Parties).

91 Ibid annex I para 11. 92 Ibid annex I para 9. 93 Ibid annex I para 13.

24

been utilised to manage natural resources and culturally significant places for millennia,

and can thus contribute to efforts to preserve WH.

The Pacific Island States exhibit ‘legal pluralism’, in part because both State and

customary legal systems operate there94 (see chapter 2). Developing and implementing

heritage protection legislation in a legally plural context can be challenging. As has been

noted:

In many Pacific countries a tension remains between national legislation for protection of World Heritage properties (in compliance with the State party’s obligations under the World Heritage Convention) and the rights of customary land owners. Developing legal protection for Pacific Island heritage that recognizes the rights of customary owners and satisfies international standards established in very different social, cultural and political systems, remains a great challenge and will require flexibility and cultural sensitivity in World Heritage system.95

This challenge is exacerbated by the fact that in the Pacific region there is ‘limited

financial and human resources, skills and capacities within communities, and institutions

to adequately manage the region’s cultural and natural heritage’.96 Consequently, most

Pacific Island States do not have well established frameworks for the protection of

culturally significance places, and while many have laws for the protection of natural

areas, such laws are rarely consistently implemented and enforced.97 To improve this

situation, greater understanding of the role of, and the relationship between, State and

customary laws in the context of WH protection is needed.

1.3 Research questions and scope

The overall aim of this thesis is to identify options that could strengthen the legal

protection of WH in Solomon Islands and other Pacific Island States sharing similar

characteristics. To achieve this aim, the following research questions will be explored:

1. What challenges and opportunities are presented by the Convention regime for the

recognition of Pacific Island heritage as WH?

2. What challenges and opportunities are presented by the Convention regime for the

protection of Pacific Island heritage?

94 Legal pluralism is commonly referred to as the existence of two or more legal orders in the same social field: Sally Engle

Merry, ‘Legal Pluralism’ (1988) 22 Law and Society Review 869, 870; John Griffiths, ‘What is Legal Pluralism?’ (1986) 24 Journal of Legal Pluralism 1, 12.

95 Smith, above n 59, 9. 96 Pacific World Heritage Action Plan 2016 – 2020 (2016) 3. 97 Smith, above n 59, 9-10.

25

3. Does an assessment of Solomon Islands’ involvement in the Convention regime,

and East Rennell’s nomination to and inscription on the WH List, help explain

any of the contemporary issues associated with the site’s protection? If so, how?

4. To what extent are East Rennell’s WH values protected under custom, and what

issues influence customary protection in practice?

5. To what extent are East Rennell’s WH values protected under State legislation,

and what issues influence the implementation of those laws in practice?

6. Based on the above, what options, if any, could be employed to improve the

protection of WH in Solomon Islands and other Pacific Island States sharing

similar characteristics?

1.3.1 Research questions 1 and 2

These questions are addressed in Part 2 of this thesis. That Part begins with chapter 2,

which sets a foundation for the legal analysis in the remainder of the thesis. It explains

the types of heritage places prevalent in the Pacific and the legal systems that operate

there. It also examines the scope for WH protection under customary and State legal

systems, and identifies key issues influencing that potential. The identified issues are

explored further in subsequent chapters.

Question 1 concerns the recognition of Pacific Island heritage under the Convention

regime. It is addressed in chapter 3, which explores the development and meaning of the

term ‘WH’, and explains the implications of the Committee’s changing interpretation of

that concept for the Pacific region.

Question 2 deals with the challenges and opportunities associated with the protection of

Pacific WH under the Convention. It is answered in chapter 4, through an analysis of the

structure of the Convention regime and the obligation of State parties to protect WH. That

chapter explains key developments that have influenced the Committee’s approach to

heritage protection, and their relevance for Pacific Island States.

Many Pacific Island States share common characteristics, so it is instructive to consider

issues that may influence WH protection across the region. Consequently, as explained

above, Part 2 of this thesis has a regional scope. The regional analysis demonstrates that

26

the findings of this research concerning Solomon Islands (in Part 3) may have relevance

for other Pacific countries. It also enables the identification of options for strengthening

WH protection that could be taken at the regional level (see chapter 9). The analysis is

however limited to the independent Pacific Island States (Cook Islands, Federated States

of Micronesia, Fiji, Kiribati, Marshall Islands, Nauru, Niue, Palau, Papua New Guinea

(PNG), Samoa, Solomon Islands, Tonga, Tuvalu, Vanuatu). Other States and overseas

territories in the Pacific are not within the scope of this research, because of their different

histories, legal and governance systems, and/or territorial status.

1.3.2 Research questions 3, 4 and 5

These questions are addressed in Part 3 of this thesis (chapters 5 – 8).

Question 3 asks whether an assessment of Solomon Islands’ involvement in the

Convention regime, and East Rennell’s nomination to and inscription on the WH List,

help explain any of the contemporary issues associated with the site’s protection. These

issues are explored in chapter 5, through an examination of the rationale behind Solomon

Islands’ signature of the Convention and its nomination of East Rennell. The nomination

and listing of East Rennell are critically analysed with reference to the Operational

Guidelines, and implications for the ongoing protection of the site are identified. The

analysis is necessary to determine whether any lessons can be learned from Solomon

Islands’ experience for the listing of further sites in that country and elsewhere.

Question 4 concerns the protection of East Rennell’s WH values under customary law,

and is addressed in chapter 6. That chapter begins by explaining the key threats to the

site’s WH values, namely extractive industries, invasive species, climate change, and the

over-harvesting of certain animals (see 6.2). It then considers the scope for those threats

to be addressed through the customary legal system, and the issues influencing customary

protection in practice. It reviews available literature on customary land tenure, practices

and governance, and comments on the willingness and ability of the East Rennellese

people to protect WH (see 6.3).

Question 5 requires an assessment of the protection of East Rennell’s WH values under

State legislation, and is addressed in several chapters. Following the examination of

27

customary protection in chapter 6, an introduction to State legal protection of WH in

Solomon Islands is provided (see 6.5). The chapter identifies relevant legislation as well

as significant gaps in Solomon Islands’ legislative framework. It also highlights key

issues influencing the implementation and effectiveness of relevant laws.

Legislation of particular relevance to the protection of East Rennell is then analysed in

detail in chapters 7 and 8. Chapter 7 focuses on laws concerning resource use (namely

the taking of particular species, and logging and mining) as well as biosecurity laws.

These laws regulate matters that relate to some of the key threats to East Rennell’s OUV,

so their implementation could contribute to the site’s conservation. Chapter 8 focuses on

the direct protection of the site under protected area laws. In these two chapters, the

legislation is critically analysed to determine the scope for it to contribute to safeguarding

East Rennell’s OUV. In addition, the legal and practical issues influencing the operation

of the laws in practice are explored. These chapters therefore provide both a

comprehensive analysis of existing legislative provisions, as well as a realistic picture of

the extent to which these laws could be used to protect the site.

A comment on the scope of chapters 6 – 8 is warranted here. As East Rennell is a natural

WH site, these chapters are limited to considering the role of law in addressing the key

threats to the site’s natural heritage values. It is recognised however that while East

Rennell was inscribed on the WH List because of its impressive natural environment, the

significance of the area to its customary owners is quite different. It is their home, the

foundation of their culture, and the basis of their livelihoods. It is regrettable that the

cultural significance of the area to the East Rennellese people was not recognised in the

site’s listing (see 5.3.1). Furthermore, there is a pressing need for work to assist the East

Rennellese people to safeguard their traditional knowledge and cultural identity, which

are the heritage values they perceive to be in most in need of preservation98 (discussed

further in 1.4). However, the fact remains that East Rennell is a natural WH site, and thus

the WH Committee is primarily concerned with the preservation of the island’s natural

environment. Consequently, as this thesis examines WH rather than heritage more

generally, it focuses on measures to protect the natural attributes of East Rennell.

Mechanisms to help the East Rennellese people preserve other aspects of their cultural

identity are outside the scope of this work.

98 Smith, above n 85, 605.

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1.3.3 Research question 6

Question 6 concerns the identification of options for strengthening the protection of WH,

and is addressed in chapter 9. Reflecting the structure of the thesis, the options are

provided at the regional- and national-level. The scope of the identified options reflects

the research questions as framed above. For example, while the research assesses the roles

of the Committee and the Advisory Bodies in the WH listing process and in decision-

making concerning the protection of WH sites, it does not analyse all aspects of their

work. As such, their role in activities such as capacity building, awareness raising,

education campaigns and monitoring are not assessed.

Furthermore, it is recognised that many of the threats to East Rennell are related to a range

of social, economic, political and cultural issues, and addressing or mitigating them is

likely to require action at a broader scale than is possible or appropriate through the

Convention regime. Chapter 9 thus focuses on realistic options that could be taken within

the ambit of that regime. Broader issues that influence WH protection in Solomon Islands,

such as the relationship between trade and WH, and mechanisms to finance conservation

initiatives, are not considered as part of this research. They should however be explored

through subsequent work.

1.4 Research methodology

The research was conducted in the discipline of law. This allowed critical analysis of key

provisions of the Convention, how they have been interpreted, and their implications for

the legal protection of Pacific WH. It also enabled an analysis of the implementation of

the Convention in the context of the legally plural nature of Solomon Islands, including

an examination of the contribution of customary and State legal systems to WH

protection. A socio-legal approach has however been taken. Such an approach is

warranted where there is significant variation between the form of a law and its practical

effect.99 This is certainly the case in Solomon Islands, where (as discussed in 2.4.1) much

legislation relevant to heritage protection is not routinely implemented or enforced.

99 Simon Jolly, ‘Family Law’ in Philip A Thomas (ed), Socio-Legal Studies (Aldershot, 1997) 342, 343.

29

A socio-legal approach recognises that ‘[e]mpirically, law is a component part of the

wider social and political structure, is inextricably related to it in an infinite variety of

ways, and can therefore only be properly understood if studied in that context’.100 It

allows an assessment of not only the ‘law in books’ but also the ‘law in action’.101 Thus,

while this research includes black-letter legal analysis, it also considers the practical

realities associated with implementation of legislation.

This approach is reflected in the methodology utilised for this study, which involved desk-

based analysis of primary, secondary and some grey literature, supplemented by empirical

research. Literature referred to included Conventions, legislation, decisions of and reports

to the WH Committee, and government and non-government reports. Reflecting the

socio-legal nature of the research, academic literature from a range of disciplines in

addition to law was utilised, such as archaeology, heritage, anthropology, cultural studies

and the natural sciences. Most of these materials were available via the world wide web

or in hard copy.

Requests were made to personnel within the Solomon Islands Ministries responsible for

WH, for any documents they held concerning East Rennell. The only documents provided

by the Ministry of Environment, Climate Change, Disaster Management, and

Meteorology were publicly available elsewhere. The Ministry of Culture and Tourism

provided a file of documents, approximately 1 inch thick, containing a seemingly random

selection of documents, most of which related to the site’s nomination. There was no

indication that other documents existed but were not being proffered. The lack of archival

information held by these Ministries may be due to a combination of poor centralised

record keeping, the loss of government documents during the ethnic tensions,102 and/or

the SIG’s limited involvement in the management of East Rennell. This presented a

challenge for this research in terms of providing a historical account of WH in Solomon

Islands and understanding the SIG’s current position on the Convention. The latter issue

was however mitigated to some extent by the interviews conducted as part of the

empirical component of this study (discussed below).

100 Phillip Thomas, ‘Curriculum Development in Legal Studies’ (1986) 20 Law Teacher 110, 112. 101 Michael Salter and Julie Mason, Writing Law Dissertations: An Introduction and Guide to the Conduct of Legal Research

(Pearson Education Ltd, 2007) 125. 102 The tensions are briefly explained in 5.4.1.

30

In addition to literature analysis, two forms of empirical research informed this study.

Firstly, it draws upon my experiences working as an environmental lawyer in Solomon

Islands between May 2011 and October 2013. This included 18 months as a lawyer for

the Landowners’ Advocacy and Legal Support Unit (LALSU), which is part of the Public

Solicitor’s Office (PSO).103 During that time, I provided legal advice and representation

to landowners on conservation, logging and mining issues. I then worked as a legal

adviser for Live and Learn Environmental Education (LLEE),104 on a project funded by

the Australian government designed to strengthen protected area governance and natural

resource management at the East Rennell WH site.105 I was engaged by LLEE to assist

with the process of registering East Rennell as a ‘protected area’ under the Protected

Areas Act 2010, which had then recently come into force.

During my time in Solomon Islands, I visited East Rennell four times, including as a

lawyer for LALSU (to raise awareness among the local communities about a proposal to

log the area) and as an advisor for LLEE (to assist with general meetings of the Lake

Tegano World Heritage Site Association,106 and to discuss the declaration of East Rennell

as a protected area) (see Figures 11 and 12). While working for both LALSU and LLEE,

I frequently consulted with people working within SIG, and participated in stakeholder

meetings concerning the WH site attended by representatives of SIG, the East Rennellese

communities, and aid donors.

103 The Public Solicitor’s Office is an office established under the Constitution, to provide legal advice and assistance to persons

in need: see Solomon Islands Independence Order 1978, sch (‘Constitution of Solomon Islands’) s 92. 104 Live and Learn Environmental Education is a non-government organisation established to promote sustainability and equity:

see www.livelearn.org. 105 The project was run by the Australian Department of Sustainability, Environment, Water, Population and Communities (now

known as the Department of Environment and Energy), with funding from AusAid’s Pacific Governance Support Program. For details of this program see International Heritage Section, Department of Sustainability, Environment, Water, Population and Communities, Australian Government, ‘Australian Capacity Building Support for East Rennell World Heritage Area 2007 – 2013’ in Anita Smith (ed), World Heritage in a Sea of Islands: Pacific 2009 Programme, World Heritage Papers 34 (UNESCO, 2012) 66.

106 The Lake Tegano World Heritage Site Association is discussed at 6.3.2.

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Figure 11: The author discussing a logging application with community members in central Rennell in February 2012 (John Marnell, 2012)

Figure 12: The author and Haikiu Baiabe assisting with general meetings of the Lake Tegano World Heritage Site Association in September 2013, as part of Live and Learn Environmental Education’s protected area project (Gwen Tovosia, 2013)

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This work in Solomon Islands gave me insight into the country’s legal systems, and the

environmental and developmental issues it faces. It allowed me to experience first-hand

the challenges associated with implementing and enforcing State conservation legislation

and laws regulating extractive industries, especially in remote places such as Rennell.

This work has therefore informed my analysis of the legal protection of WH, particularly

the potential for the Protected Areas Act to contribute to the conservation of East Rennell.

The second form of empirical research utilised in this study involved semi-structured

interviews, conducted with people who are working, or who have worked, for the SIG on

matters relating to WH. Six interviews were conducted, in person in Honiara (see

Appendix). The interviewees were chosen because they had worked on WH matters and

they were based in Honiara. They held mixed positions within government, with some

being Ministers and others having more practical involvement in the protection of East

Rennell. The small number of interviews reflects the fact that not many people within the

SIG have had substantial involvement with WH. Through my research, I did identify a

few others who had worked in this area, but it was not feasible for me to travel to the

islands where they lived to interview them.

In designing and conducting the interviews, I was cognisant of ethical and cultural

considerations. This was particularly important given that I am not a Solomon Islander.

For example, the interviewees were not asked to divulge confidential information, nor to

critique the Solomon Island government’s implementation of the Convention. Interviews

were conducted in a mix of English and Solomon Islands pijin. Prior to being interviewed,

the interviewees were asked whether they consented to being quoted, and whether they

wished to remain anonymous. All those interviewed agreed to be quoted, but only some

consented to being named.

The aim of the interviews was to determine what the interviewees perceived to be the

opportunities and challenges associated with WH protection. They were therefore asked

to comment on issues such as the SIG’s role in the protection of a WH site under

customary tenure, the Committee’s approach to the protection of East Rennell

(particularly its request for logging and mining on the island to be banned) and the

assistance SIG wants from the international community. The interviews provided

important insights into how the Convention regime is perceived by people working within

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the SIG, including helping to explain why the government has not yet acted to strictly

protect East Rennell. Obviously some caution must be taken in accepting the results of

this empirical research, given the small number of interviewees. Furthermore, my position

as a legal adviser for LLEE, and the fact that I am not a Solomon Islander, may have

influenced the interviewees’ responses. I do not however consider that this latter issue

substantially impacted the research, as the interviewees seemed quite candid in their

discussions with me.

To supplement the perspectives on WH that I gained through my work and research in

Solomon Islands, I attended the WH Committee annual meeting in Bonn, Germany in

2015. This allowed me to view the Committee’s deliberations concerning East Rennell,

and to discuss the site with interested parties, to better understand how the issues

surrounding its conservation are perceived at the international level.

Three aspects of the methodology warrant additional explanation here. Firstly, this

research did not involve any interviews with members of the East Rennellese

communities. It is evident from existing research that many East Rennellese people are

disappointed with the WH program, in part because it has failed to deliver them

substantial tangible benefits.107 I did not want to exacerbate these feelings by conducting

further consultations that would not directly improve their livelihoods. Furthermore, I

considered that interviewing members of the East Rennellese communities for the

purposes of this research could jeopardise my work as a legal adviser for LLEE. If I had

conducted any such interviews, some people might have formed the view that I was only

working on the LLEE project to benefit my own research. As this could have undermined

LLEE’s work, I only interviewed current and former government employees.

Secondly, no empirical research to document the customary legal system of East Rennell

was conducted, despite this being a critical gap in the literature (see 1.5.4). The reason

for this was my belief that any such research must accord with the aspirations of the East

Rennellese people. For the people of East Rennell, WH conservation cannot be discussed

separately from the preservation of their cultural heritage. Indeed, as Smith has found, the

107 See, eg, Dingwall, above n 5; Smith, above n 85; Gabrys and Heywood, above n 44; Salamat Ali Tabbasum and Paul Dingwall,

Report on the Mission to East Rennell World Heritage Property and Marovo Lagoon, Solomon Islands, 30 March – 10 April 2005 (IUCN and World Heritage Centre, 2005); Jacob Zikuli and Hazel Clothier, Community Attitudes and Perceptions Towards the East Rennell World Heritage Programme (Live and Learn Environmental Education, 2008).

34

heritage that they consider to be in most need of protection is linked to their traditional

knowledge and their cultural identity, not the site’s WH values.108 To safeguard their

culture, the East Rennellese communities have expressed support for a project to ‘record

their biocultural values, including land tenure, environmental knowledge, traditional

resource use, crafts, songs and dance’.109 Consequently, it is difficult to see how empirical

research on customary protection of WH values could be ethically conducted in isolation

of a broader project to investigate, document and conserve Rennellese culture, in

accordance with the priorities of the East Rennellese people. That broader work is beyond

the boundaries of the discipline of law (and my expertise) and thus outside the scope of

this thesis. Ideally, any measures taken to protect the natural environment of the area

should be integrated with such work. Thus, the present research (which concerns the legal

protection of the environment) could inform or form part of a broader project aimed at

conserving the natural and cultural heritage of East Rennell.

The absence of empirical research on customary protection means that a somewhat State-

centric approach is taken in this research. For example, customary protection is explored

in part of chapter 6, while two chapters (chapters 7 and 8) are devoted to analysis of

relevant State legislation. This does not derogate from the importance of this work, as

appropriate and effective State laws are critical for the long-term protection of the site.

Furthermore, the ‘voice’ of the East Rennellese people has not been ignored. In addition

to the insights I gained from visiting East Rennell, some literature documents the views

of local communities’ concerning WH.110 As noted above, those reports indicate that

many East Rennellese people are disappointed with the lack of tangible benefits they have

received from the listing of their land, and they are legitimately concerned about food

security and other livelihood issues. These perspectives feature heavily in my analysis of

the legal protection of the site under both custom and State law in Part 3 of this thesis.

The fact that analysis of State legislation dominates that Part does however confirm the

need for further empirical research on customary protection of the site.

Finally, a comparative analysis between East Rennell and other Pacific WH sites has not

been undertaken. This is because although Pacific Island States share some common

characteristics, their eight listed WH sites vary, including in terms of the criteria which

108 Smith, above n 85. 109 Ibid 605. 110 See above n 107.

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justified their listing, their land tenure and whether they are inhabited (see Table 2).

Consequently, the benefits of a comparative study were considered to be insufficient to

warrant the substantial loss of detail that would result from broadening the research focus.

In addition, as explained above, this research was informed by empirical research

undertaken in Solomon Islands, which I could not feasibly duplicate in other States.

Although a comparative study was not undertaken, the commonalities shared by many

Pacific Island States (discussed in chapter 2) mean that the findings of this research into

Solomon Islands could have relevance for other nations in the region. Future research

could involve a comparative analysis, to investigate whether lessons learned from other

jurisdictions could be utilised to improve Solomon Islands’ implementation of the

Convention.

1.5 Literature review

While literature focused on WH in Solomon Islands is very limited, a broad range of

literature is relevant to this research. The review below provides an outline of this existing

work. It divides the literature into four broad overlapping categories: WH and its

protection (1.5.1), legal pluralism and the legal systems of Solomon Islands (1.5.2),

heritage protection under customary legal systems (1.5.3); and the protection of WH in

Solomon Islands and other Pacific Island States (1.5.4). The review focuses on key

literature and key issues only. A more detailed examination of relevant works is provided

in the body of the thesis. The review does however demonstrate that the present research

makes an important contribution to the body of knowledge concerning WH, particularly

Pacific WH sites under customary tenure.

1.5.1 World Heritage and its protection

Analysis of the Convention regime in the present research is based on the Convention

document itself, the Operational Guidelines, and related literature including decisions of

the Committee, reports prepared by intergovernmental organisations such as UNESCO

and the Advisory Bodies, conference proceedings and strategic documents. In addition, a

wide body of academic literature has been drawn upon, including chapters of heritage

texts, and articles in journals from disciplines including law, archaeology, heritage,

anthropology and cultural studies. The most comprehensive examination of the

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Convention regime is a commentary edited by Francesco Francioni,111 which analyses the

treaty article by article. Among other things, it covers the concept of WH, the structures

that comprise the regime, and the duties of State parties and the international community.

Other useful assessments of the Convention as a whole have been published by legal

scholars such as Forrest112 and Boer and Wiffen.113

In addition, there is a broad body of literature dealing with aspects of the Convention

regime, such as global policy issues and matters affecting specific sites. Of particular

relevance to this research is literature exploring the Global Strategy and the composition

of the WH List, 114 the development and changing interpretation of the concept of OUV,115

and the recognition of ‘cultural landscapes’ as WH.116 Scholars writing on these topics

come from a range of disciplines including heritage studies, economics, archaeology,

anthropology, geography and law. Among other things, this literature (which is explored

in chapter 3) assesses the impact of the Committee’s approach to OUV on the composition

of the WH List. Relevantly, Anita Smith (an archaeologist with extensive experience in

the Pacific) has shown that the Committee’s broadening interpretation of what constitutes

cultural WH has increased the potential for sites of significance to Pacific islanders to be

listed.117 Chapter 3 builds upon this existing literature by considering the implications of

these changes for the protection of Pacific sites.

111 Francesco Francioni (ed), The 1972 World Heritage Convention: A Commentary (Oxford University Press, 2008). 112 Forrest, above n 75. 113 Ben Boer and Graeme Wiffen, Heritage Law in Australia (Oxford University Press, 2006). 114 See, eg, Strasser, above n 13; Steiner and Frey, above n 73; Frey, Pamini and Steiner, above n 75; Bertacchini and Saccone,

above n 75; Sophia Labadi, ‘A Review of the Global Strategy for a Balanced, Representative and Credible World Heritage List 1994 – 2004’ (2005) 7(2) Conservation and Management of Archaeological Sites 89; Lynn Meskell, Claudi Liuzza and Nicholas Brown, ‘World Heritage Regionalism: UNESCO from Europe to Asia’ (2015) 22 International Journal of Cultural Property 437.

115 See, eg, Labadi, above n 114, Titchen, above n 22, Titchen, above n 8; Abdulqawi A Yusuf, ‘Article 1 Definition of Cultural Heritage’ in Francesco Francioni (ed), The 1972 World Heritage Convention: A Commentary (Oxford University Press, 2008) 23; Henry Cleere, ‘Cultural Landscapes as World Heritage’ (1995) 1 Conservation and Management of Archaeological Sites 63; Henry Cleere, ‘The Concept of ‘Outstanding Universal Value’ in the World Heritage Convention’ (1996) 1 Conservation and Management of Archaeological Sites 227; Bernd von Droste, ‘The Concept of Outstanding Universal Value and its Application: From the Seven Wonders of the Ancient World to the 1,000 World Heritage Places Today’ (2011) 1(1) Journal of Cultural Heritage Management and Sustainable Development 26; Kathryn Whitby-Last, ‘Article 1 Cultural Landscapes’ in Francesco Francioni (ed), The 1972 World Heritage Convention: A Commentary (Oxford University Press, 2008) 51; Catherine Redgwell, ‘Article 2 Definition of Natural Heritage’ in Francesco Francioni (ed), The 1972 World Heritage Convention: A Commentary (Oxford University Press, 2008) 63; Jukka Jokilehto, What is OUV? Defining the Outstanding Universal Value of Cultural World Heritage Properties (ICOMOS, 2008).

116 See, eg, Cleere, ‘Cultural Landscapes’, above n 115; Titchen, above n 8; Ian Lilley, ‘Nature and Culture in World Heritage Management: A View from the Asia-Pacific (Or, Never Waste a Good Crisis!) in Sue O’Connor, Denis Byrne and Sally Brockwell (eds), Transcending the Culture-Nature Divide in Cultural Heritage: Views from the Asia-Pacific Region (ANU E Press, 2012) 13; Natsuko Akagawa and Tiamsoon Sirisrisak, ‘Cultural Landscapes in Asia and the Pacific: Implications of the World Heritage Convention’ (2008) 14(2) International Journal of Heritage Studies 176; Graeme Aplin, ‘World Heritage Cultural Landscapes’ (2007) 13(6) International Journal of Heritage Studies 427.

117 Anita Smith, ‘World Heritage and Outstanding Universal Value in the Pacific Islands’ (2015) 21(2) International Journal of Heritage Studies 177.

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Just as the Committee has expanded the range of sites that may be considered WH, it has

also broadened its approach to how such places may be managed and protected. As

explored in chapter 4, existing literature shows that it is now widely accepted that heritage

sites cannot be preserved in complete isolation from the impacts of humans, nor can they

be separated from development activities or social changes.118 Furthermore, the important

role played by Indigenous people and local communities in the implementation of the

Convention is now recognised.119 As a result, some commentators have called for WH

sites to be managed through rights-based approaches, placing human rights on an equal

footing with conservation.120 In addition, the 2007 United Nations Declaration on the

Rights of Indigenous People (UNDRIP) is now commonly used as a basis for advocating

for greater involvement of Indigenous people in the implementation of the Convention.121

As such, several studies have highlighted instances where Indigenous peoples’ rights

were not adequately respected in these processes,122 or presented case studies

documenting attempts to ensure that UNDRIP is complied with.123 Again, this work has

been written by academics from several disciplines, such as geography, anthropology and

social science.

The present research on East Rennell demonstrates the need to approach WH protection

in the context of sustainable development, but also the challenges associated with

balancing conservation and development in practice. It adds to the literature that confirms

118 See, eg, UNESCO / ICCROM / ICOMOS / IUCN, Managing Cultural World Heritage, World Heritage Resource Manual

(UNESCO, 2013) 13; Adrian Phillips, ‘Turning Ideas on their Head: The New Paradigm for Protected Areas’ (2003) 20(2) The George Wright Forum 8, 19-20; Grazia Borrini-Feyerabend, Ashish Kothari and Gonzalo Oviedo, Indigenous and Local Communities and Protected Areas: Towards Equity and Enhanced Conservation, Best Practice Protected Area Guidelines 11 (World Conservation Union, 2004) 2.

119 See, eg, UNESCO et al, above n 118, 13; Robert James Hales et al, ‘Indigenous Free Prior Informed Consent: A Case for Self Determination in World Heritage Nomination Processes’ (2013) 19(3) International Journal of Heritage Studies 270; Stefan Disko, Indigenous Peoples’ Rights in the Context of the World Heritage Convention: The Role of IUCN (IUCN, 2011) <https://www.iucn.org/content/indigenous-peoples-rights-context-world-heritage-convention-%E2%80%93-role-iucn>; Eman Assi, ‘World Heritage Sites, Human Rights and Cultural Heritage in Palestine’ (2012) 18(3) International Journal of Heritage Studies 316; Jukka Jokilehto, ‘Human Rights and Cultural Heritage: Observations on the Recognition of Human Rights in the International Doctrine’ (2012) 18(3) International Journal of Heritage Studies 226.

120 See, eg, Jokilehto, above n 119; Borrini-Feyerabend, Kothari and Oviedo, above n 118; Stener Ekern et al ‘Human Rights and World Heritage: Preserving Our Common Dignity through Rights-Based Approaches to Site Management’ (2012) 18(3) International Journal of Heritage Studies 213; William Logan, ‘Cultural Diversity, Cultural Heritage and Human Rights: Towards Heritage Management as Human Rights-Based Cultural Practice’ (2012) 18(3) International Journal of Heritage Studies 231; Gonzalo Oviedo and Tatjana Puschkarsky, ‘World Heritage and Rights-Based Approaches to Nature Conservation’ (2012) 18(3) International Journal of Heritage Studies 285; Stan Stevens, ‘Implementing the UN Declaration on the Rights of Indigenous Peoples and International Human Rights Law through the Recognition of ICCAs’ (2010) 17 Policy Matters 181; Rosemary Hill et al, ‘Empowering Indigenous Peoples’ Biocultural Diversity through World Heritage Cultural Landscapes: A Case Study from the Australian Humid Tropical Forests’ (2011) 17(6) International Journal of Heritage Studies 571.

121 See, eg, Ekern et al, above n 120; Disko, above n 119; Hales et al, above n 119; Ekern et al, above n 120; Peter Bille Larsen, World Heritage and Evaluation Processes Related to Communities and Rights: An Independent Review (IUCN, 2012).

122 See, eg, Stevens, above n 120; Gro B Ween, ‘World Heritage and Indigenous Rights: Norwegian Examples’ (2012) 18(3) International Journal of Heritage Studies 257; Hazel Tucker and Andus Emge, ‘Managing a World Heritage Site: The Case of Cappadocia’ (2010) 21(1) Anatolia 41.

123 See, eg, Hales et al, above n 119; Raynald Harvey Lemelin and Nathan Bennett, ‘The Proposed Pimachiowin Aki World Heritage Site Project: Management and Protection of Indigenous World Heritage Sites in a Canadian Context’ (2010) 34(2) Leisure 169.

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the critical role of local communities in WH protection. This research supplements that

existing work, by exploring the role of local communities in terms of their ability and

willingness to protect WH under customary and State legal systems.

1.5.2 Legal pluralism and the legal systems of Solomon Islands

Solomon Islands, like the other Pacific Island States, is a legally plural State. Although

there is no universally accepted definition of ‘legal pluralism’, it is commonly defined as

the existence of more than one legal order in a social field.124 The existence of legal

pluralism is now accepted by many academics,125 despite ongoing debates, including how

to define the boundary between non-State law and other non-legal social phenomena.126

Literature addresses issues such as the types of legal orders that exist, whether particular

orders are rightly construed as ‘law’, and the relationship between State and non-State

legal systems127 (see chapter 2). A monograph by Miranda Forsyth (a legal scholar who

has written extensively on State and non-State law in the Pacific) provides a

comprehensive synthesis of literature on this topic.128 Her work includes a discussion of

the possibilities and limitations associated with the application of the concept of ‘legal

pluralism’ in Melanesia.129 Among other things, she notes that legal pluralism establishes

non-State justice systems as a legitimate field of study, thus facilitating their

investigation.130 As a result, the concept is now increasingly used to frame legal analyses

of topics such as human rights,131 development,132 and access to justice.133

Solomon Islands exhibits legal pluralism in part because of the existence of customary

legal systems developed by Solomon Islanders, and the State system adopted upon the

124 Sally Engle Merry, ‘Legal Pluralism’ (1988) 22 Law and Society Review 869, 870. 125 Forsyth notes that there is some debate about the precise extent to which legal pluralism is accepted: see Miranda Forsyth, A

Bird That Flies with Two Wings: Kastom and State Justice Systems in Vanuatu (ANU E Press, 2009) 38. 126 Ibid 38. 127 See, eg, Merry, above n 124; Sally Engle Merry, ‘Legal Pluralism and Legal Culture: Mapping the Terrain’ in Brian Z

Tamanaha, Caroline Sage and Michael Woolcock (eds), Legal Pluralism and Development: Scholars and Practitioners in Dialogue (Cambridge University Press, 2012) 66; Brian Z Tamanaha, ‘Understanding Legal Pluralism: Past to Present, Local to Global’ (2008) 30 Sydney Law Review 375; Franz von Benda-Beckmann and Keebet von Benda-Beckmann, ‘The Dynamics of Change and Continuity in Plural Legal Orders’ (2006) 53-54 Journal of Legal Pluralism 1; Gordon R Woodman, ‘Ideological Combat and Social Observation: Recent Debate About Legal Pluralism’ (1998) 42 Journal of Legal Pluralism and Unofficial Law 21; Paul Schiff Berman, ‘From International Law to Law and Globalisation’ (2005) 43(2) Columbia Journal of Transnational Law 485.

128 Forsyth, above n 125. 129 Ibid 44. 130 Ibid. 131 International Council on Human Rights Policy, When Legal Worlds Overlap: Human Rights, State and Non-State Law (2009). 132 Brian Tamanaha, ‘The Rule of Law and Legal Pluralism in Development’ in Brian Z Tamanaha, Caroline Sage and Michael

Woolcock (eds), Legal Pluralism and Development: Scholars and Practitioners in Dialogue (Cambridge University Press, 2012) 34.

133 Government of the United Kingdom (Department for International Development), Safety, Security and Accessible Justice: Putting Policy into Practice (2002).

39

nation gaining independence from Britain. Thus, the present research on WH protection

requires consideration of customary laws, State legislation and their interactions.

Analysis of Solomon Islands’ State legal system for the present research has been based

on the country’s Constitution and relevant national and provincial legislation. In addition,

academic literature has been drawn upon, primarily from journals focused on the Pacific

region or legal pluralism. Jennifer Corrin is a key legal academic researching this topic,

having explored issues such as the historical development of the State legal system, the

Constitutional hierarchy of laws, and the complex relationship between State and

customary laws.134 Although not always using the terminology of legal pluralism, the

interactions between State and customary laws in relation to subjects such as land135 and

forestry136 have also been investigated. These studies highlight numerous legal and

practical issues arising from these interactions, demonstrating that the optimal

relationship between the two systems is yet to be identified. The present research expands

upon this body of work, by exploring the interactions between State and customary legal

systems in the context of heritage protection.

Selected works in journals of history, culture, anthropology, geography, and social

sciences have also been utilised. Those articles have been reviewed through a legal lens,

to explore the issues influencing the operation of Solomon Islands’ legal systems in

practice. For example, there is a broad body of literature concerning governance and

State-building in Solomon Islands.137 Key works are referred to in chapter 2 to help

134 See, eg, Jennifer Corrin Care, ‘Courts in Solomon Islands’ (1999) LAWASIA Journal 98; Jennifer Corrin Care, ‘Customary

Law in Conflict: The Status of Customary Law and Introduced Law in Post-Colonial Solomon Islands’ (2001) 27(2) Commonwealth Law Bulletin 1290; Jennifer Corrin Care and Jean G Zorn, ‘Legislating pluralism: Statutory ‘Developments’ in Melanesian Customary Law’ (2001) 46 Journal of Legal Pluralism 49; Jennifer Corrin Care, ‘‘Off the Peg’ or ‘Made to Measures’: Is the Westminster System of Government Appropriate in Solomon Islands?’ (2002) 27(5) Alternative Law Journal 207; Jennifer Corrin Care and Jean G Zorn, ‘Legislating for the Application of Customary Law in Solomon Islands’ (2005) 34 Common Law World Review 144; Jennifer Corrin, ‘Customary Land and the Language of the Common Law’ (2008) 37 Common Law World Review 305; Jennifer Corrin, ‘Moving Beyond the Hierarchical Approach to Legal Pluralism in the South Pacific’ (2009) 59 Journal of Legal Pluralism and Unofficial Law 29; Jennifer Corrin, ‘A Question of Identity: Complexities of State Law Pluralism in the South Pacific’ (2010) 61 Journal of Legal Pluralism and Unofficial Law 145.

135 See, eg, Corrin, ‘Customary Land and the Language of the Common Law’, above n 134; AusAid, Making Land Work: Reconciling Customary Land and Development in the Pacific (Australian Agency for International Development, vol 1, 2008) 117; John Cook and Genesis Eddie Kofana, ‘Recording Land Rights and Boundaries in Aultua Basin, Solomon Islands’ in Making Land Work: Volume Two – Case Studies on Customary Land and Development in the Pacific (AusAid, 2008) 47; Joseph D Foukana, ‘Legal Aspects of Customary Land Administration in Solomon Islands’ (2007) 11(1) Journal of South Pacific Law 64; Rebecca Monson, Negotiating Land Tenure: Women, Men and the Transformation of Land Tenure in Solomon Islands, Traditional Justice: Practitioner’s Perspective Working Papers 1 (International Development Law Organisation, 2011); Marjorie Sullivan, Recognition of Customary Land in the Solomon Islands: Status, Issues and Options, Resource Management in Asia-Pacific Working Paper 66 (Australian National University, 2007); Sue Farran, ‘Navigating Between Traditional Land Tenure and Introduced Land Laws in Pacific Island States’ (2011) 64 Journal of Legal Pluralism and Unofficial Law 65.

136 See, eg, J C Corrin, ‘Abrogation of the Rights of Customary Land Owners by the Forest Resources and Timber Utilisation Act’ (1992) 3 Queensland University of Technology Law Journal 131.

137 See, eg, Judith Bennett, Roots of Conflict in Solomon Islands - Though Much is Taken, Much Abides: Legacies of Tradition and Colonialism, State, Society and Governance in Melanesia Discussion Paper (Australian National University, 2002); Sinclair Dinnen, ‘The Solomon Islands Intervention and the Instabilities of the Post-Colonial State’ (2008) 20(3) Global

40

explain the current political and economic climate in Solomon Islands, which influences

the SIG’s ability and willingness to protect WH.

Although customary legal systems remain integral to the lives of most Solomon

Islanders,138 there is little hard data on them.139 Importantly, customary systems have not

been codified, and vary throughout the country,140 so site-specific analysis is needed to

ascertain the applicable customary laws and governance structures. Generally however,

the literature demonstrates that customary systems remain highly relevant to most

Solomon Islanders,141 but in some places they are weakening, which is impeding their

ability to deal with contemporary issues and disputes.142 The present research contributes

to knowledge in this area by exploring the implications of this for WH protection.

1.5.3 Heritage protection under customary legal systems

Interest in exploring the potential for customary legal systems to contribute to the

protection of the natural environment derives in part from increasing acceptance of the

benefits of local approaches to achieving sustainable development, and the growing

recognition of the rights of Indigenous peoples. This has spawned research into local

approaches to natural resource management, often referred to using terminology such as

community-based environmental management (CBEM), locally managed marine areas

(LMMAs) and Indigenous and community conservation areas (ICCAs).

Change, Peace and Security (formerly Pacific Review: Peace, Security and Global Change) 338; Sinclair Dinnen, ‘A Comment on State-Building in Solomon Islands’ (2007) 42(2) Journal of Pacific History 255; Sinclair Dinnen, ‘State-Building in a Post-Colonial Society: The Case of Solomon Islands’ (2008) 9 Chicago Journal of International Law 51; Clive Moore, ‘Pacific View: The Meaning of Governance and Politics in the Solomon Islands’ (2008) 62(3) Australian Journal of International Affairs 386; Clive Moore, ‘Helpem Fren’ (2007) 42(2) Journal of Pacific History 141; Jane Turnbull, ‘Solomon Islands: Blending Traditional Power and Modern Structures in the State’ (2002) 22 Public Administration and Development 191; Nicholas Menzies, Legal Pluralism and the Post-Conflict Transition in the Solomon Islands (Hertie School of Governance, Berlin, 2007); Braithwaite et al, Pillars and Shadows: Statebuilding as Peacebuilding in Solomon Islands (ANU E Press, 2010); Matthew Allen and Sinclair Dinnen, ‘The North Down Under: Antimonies of Conflict and Intervention in Solomon Islands’ (2010) 10(3) Conflict, Security and Development 299.

138 See, eg, Corrin Care and Zorn, ‘Legislating for the Application of Customary Law’, above n 134, 148; Corrin, ‘Moving Beyond the Hierarchical Approach’, above n 134, 31; Allen et al, Justice Delivered Locally: Systems, Challenges and Innovations in Solomon Islands (World Bank, 2013) xi, 34; Stephan Klingelhofer and David Robinson, The Rule of Law, Custom and Civil Society in the South Pacific: An Overview (International Center for Not-for-Profit Law, 2001) 10; Jennifer Corrin Care, ‘Wisdom and Worthy Customs: Customary Law in the South Pacific’ (2002) 80 Reform 31, 35; Edvard Hviding, ‘Contextual Flexibility: Present Status and Future of Customary Marine Tenure in Solomon Islands’ (1998) 40 Ocean and Coastal Management 253, 266.

139 Michael Goddard, Justice Delivered Locally, Solomon Islands: Literature Review (World Bank, 2010) 28. 140 See, eg, Corrin Care and Zorn, ‘Legislating Pluralism’ above n 134, 53, 71; Corrin Care and Zorn, ‘Legislating for the

Application of Customary Law’, above n 134, 145; Corrin, ‘A Question of Identity’, above n 134, 147; Hviding, above n 138, 256.

141 See above n 138. 142 See, eg, Allen et al, above n 138; Corrin, ‘A Question of Identity’, above n 134, 147; Menzies, above n 137, 10; Anne M

Brown, ‘Custom and Identity: Reflections on and Representations of Violence in Melanesia’ in Nikki Slocum-Bradley (ed), Promoting Conflict or Peace through Identity (Ashgate, 2008) 183, 190.

41

Much of the literature on local approaches in the Pacific (which is referred to in chapters

2 and 4) focuses on marine areas,143 as they are considered to be more discrete and

‘manageable’ than terrestrial areas, and more directly relevant to the lives of many Pacific

islanders.144 There has been some analysis of local approaches to the management of

terrestrial areas,145 but there is substantial scope for more.146

The literature demonstrates that the traditional practices, ecological knowledge, and

customary legal systems of Pacific islanders can form the basis of sound contemporary

natural resource management. Factors influencing the effectiveness of such approaches

include the strength of customary governance, the degree of cohesion within the local

community, and the nature and source of the threats facing the ecosystem. Although this

literature tends to focus on safeguarding the natural environment, it has broader relevance

for Pacific heritage places given the close connection between culture and nature in that

region.147 While some studies explore the interactions between State and customary laws

in this context,148 there is little analysis of Solomon Islands and that which exists is dated

143 See, eg, Shankar Aswani, ‘Customary Sea Tenure in Oceania as a Case of Rights-Based Fishery Management: Does it Work?’

(2005) 15 Reviews in Fish Biology and Fisheries 285; S Aswani et al, ‘Customary Management as Precautionary and Adaptive Principles for Protecting Coral Reefs in Oceania’ (2007) 26 Coral Reefs 1009; S Aswani, ‘Assessing the Effect of Changing Demographic and Consumption Patterns on Sea Tenure Regimes in the Roviana Lagoon, Solomon Islands’ (2002) 31 Ambio 272; J E Cinner and T R McClanahan, ‘Socioeconomic Factors that Lead to Overfishing in Small-Scale Coral Reef Fisheries of Papua New Guinea’ (2006) 33 Environmental Conservation 73; Hugh Govan et al, Status and Potential of Locally-Managed Marine Areas in the South Pacific: Meeting Nature Conservation and Sustainable Livelihood Targets Through Wide-Spread Implementation of LMMAs (SPREP/WWF/WorldFish-Reefbase/CRISP, 2009); Hviding, above n 138; S D Jupiter, P J Cohen, R Weeks, A Tawake and H Govan, ‘Locally-Managed Marine Areas: Multiple Objectives and Diverse Strategies’ (2014) 20 Pacific Conservation Biology 165; R E Johannes, ‘Traditional Marine Conservation Methods in Oceania and their Demise’ 9 (1978) Annual Review of Ecology and Systematics 349; Jan McDonald, Marine Resource Management and Conservation in Solomon Islands: Roles, Responsibilities and Opportunities (Griffith Law School, 2010); K Ruddle, E Hviding and R E Johannes, ‘Marine Resources Management in the Context of Customary Tenure’ (1992) 7 Marine Resource Economics 249; Kenneth Ruddle, ‘The Context of Policy Design for Existing Community-Based Fisheries Management Systems in the Pacific Islands’ (1998) 40 Ocean and Coastal Management 105; Marjo Vierros et al, Traditional Marine Management Areas of the Pacific in the Context of National and International Law and Policy (United Nations University, 2010); Joeli Veitayaki et al, ‘On Cultural Factors and Marine Managed Areas in Fiji’ in Jolie Liston, Geoffrey Clark and Dwight Alexander (eds), Pacific Island Heritage: Archaeology, Identity and Community (ANU E Press, 2011) 37.

144 Hugh Govan et al, Community Conserved Areas: A Review of Status and Needs in Melanesia and Polynesia (2009) 19. 145 See, eg, Pepe Clarke and Stacy D Jupiter, ‘Law, Custom and Community-Based Natural Resource Management in Kubulau

District (Fiji)’ (2010) 37(1) Environmental Conservation 98; Pepe Clarke and Charles Taylor Gillespie, Legal Mechanisms for the Establishment and Management of Terrestrial Protected Areas in Fiji (IUCN, 2009); Ashish Kothari et al (eds), Recognising and Supporting Territories and Areas Conserved by Indigenous Peoples and Local Communities: Global Overview and National Case Studies (Kalpavriksh, and Natural Justice, 2012); Erika J Techera, ‘Protected Area Management in Vanuatu’ (2005) 2 Macquarie Journal of International and Comparative Environmental Law 107.

146 Govan et al, above n 144, 19. 147 See, eg, Paige West and Dan Brockington, ‘An Anthropological Perspective on Some Unexpected Consequences of Protected

Areas’ (2006) 20(3) Conservation Biology 609, 611; Ballard and Wilson, above n 84, 134; Anita Smith and Cate Turk, ‘Customary Systems of Management and World Heritage in the Pacific Islands’ in Sue O’Connor, Denis Byrne and Sally Brockwell (eds), Transcending the Culture-Nature Divide in Cultural Heritage: Views from the Asia-Pacific Region (ANU E Press, 2012) 22, 29. For further discussion see 2.2.1.

148 See, eg, Clarke and Gillespie, above n 145; McDonald, above n 143; Blaise Kuemlangan, Creating Legal Space for Community-Based Fisheries and Customary Marine Tenure in the Pacific: Issues and Opportunities (Food and Agriculture Organisation of the United Nations, 2004); Erika J Techera, Law, Custom and Conservation: The Role of Customary Law in Community-Based Marine Management in the South Pacific (PhD Thesis, Macquarie University, Sydney, 2009); Erika J Techera, ‘Customary Law and Community Based Conservation of Marine Areas in Fiji’ in Dennis Pavlich (ed), Managing Environmental Justice (Rodopi, 2010) 143; Erika J Techera and Shauna Troniak, Marine Protected Areas Policy and Legislation Gap Analysis: Fiji Islands (IUCN, 2009).

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and limited to marine areas. The present research therefore helps to fill this gap in the

literature.

To date, only a ‘handful’ of places under customary management have been inscribed on

the WH List.149 Most of these are subject to co-management systems, under which the

government and local resource users share power and responsibility for the area.150 For

example, the co-management regimes being implemented at some WH sites in Australia

have been analysed.151 These approaches have emerged to allow Indigenous people

greater decision-making powers over their traditional lands,152 to ensure that their

aspirations are incorporated into environmental management initiatives,153 and as part of

the reconciliation process.154 Literature explores issues such as the development of the

concept of co-management,155 processes by which Indigenous peoples have been

incorporated into management approaches,156 the institutional arrangements that facilitate

such approaches157 and case studies of particular sites.158 Co-management is an effective

approach in some places. However, it is unlikely to be appropriate in States such as

Solomon Islands where many places are owned and occupied by customary owners who

rely on the land for their livelihoods,159 and the government has limited resources and

capacity to participate in site management. As such, literature concerning co-management

regimes does not derogate from the need to analyse WH protection in the Pacific context.

Some analyses of heritage protection in other regions is however instructive. For example,

assessments of African heritage laws160 discuss how colonisation redefined African

149 Smith and Turk, above n 147, 26. 150 F Berkes, P J George and R J Preston, ‘The Evolution of Theory and Practice of the Joint Administration of Living Resources’

(1991) 18(2) Alternatives 12, 12. 151 See, eg, M Nursey-Bray and P Rist, ‘Co-Management and Protected Area Management: Achieving Effective Management of

a Contested Site: Lessons from the Great Barrier Reef World Heritage Area (GBRWHA) (2009) 33(1) Marine Policy 118; Tony Corbett, Marcus Lane and Chris Clifford, Achieving Indigenous Involvement in Management of Protected Areas: Lessons from Recent Australian Experience, Aboriginal Politics and Public Sector Management Research Paper 5 (Centre for Australian Public Sector Management, 1998); T Bauman, C Haynes and G Lauder, Pathways to the Co-Management of Protected Areas and Native Title in Australia, AIATSIS Research Discussion Paper 32 (2013); Melanie Zubra et al, ‘Building Co-Management as a Process: Problem Solving Through Partnerships in Aboriginal Country, Australia’ (2012) 49 Environmental Management 1130; Joseph J Spaeder and Harvey A Feit, ‘Co-Management and Indigenous Communities: Barriers and Bridges to Decentralised Resource Management: Introduction’ (2005) 47(2) Anthropologica 147.

152 Bauman, Haynes and Lauder, above n 151, 9. 153 Nursey-Bray and Rist, above n 151; Corbett, Lane and Clifford, above n 151, 1. 154 Bauman, Haynes and Lauder, above n 151, 10. 155 See, eg, Ryan Plummer and Derek Armitage, ‘Crossing Boundaries, Crossing Scales: The Evolution of Environment and

Resource Co-Management’ (2007) 1(4) Geography Compass 834. 156 See, eg, Corbett, Lane and Clifford, above n 151. 157 See, eg, Bauman, Haynes and Lauder, above n 151. 158 See, eg, Zubra, above n 151; Rosemary Hill, ‘Towards Equity in Indigenous Co-Management of Protected Areas: Cultural

Planning by Miriuwung-Gajerrong People in the Kimberley, Western Australia’ (2011) 49(1) Geographical Research 72. 159 Smith and Turk, above n 147, 23. 160 See, eg, Paul Mupira, ‘Implementation and Enforcement of Heritage Laws’ in Webber Ndoro, Albert Mumma and George

Abungu (eds), Cultural Heritage and the Law: Protecting Immoveable Heritage in English-Speaking Countries of Sub-Saharan Africa, ICCROM Conservation Studies 8 (ICCROM, 2008) 79; Albert Mumma, ‘Framework for Legislation on Immoveable Cultural Heritage in Africa’ in Webber Ndoro, Albert Mumma and George Abungu (eds), Cultural Heritage and

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heritage from a Western perspective, and shifted responsibility for managing cultural

heritage from communities to central colonial governments. Consequently, scholars have

found that African legislation often fails to appropriately recognise the role of customary

legal systems, and greater community involvement in cultural heritage preservation is

required.161 Josephine Gillespie also advocates for greater recognition of the role of local

communities in WH protection. Her doctoral thesis exploring the regulatory framework

that applies to Angkor Wat provides a comprehensive analysis of the protection of a WH

site in the legally plural Cambodia.162 She argues that heritage protection laws should pay

more attention to legal and normative structures and systems that are already in place,

such as those developed by local communities. These studies therefore demonstrate the

need for State heritage protection laws that supplement and strengthen existing customary

protection, a contention which is confirmed by the present research in the Solomon

Islands context.

1.5.4 The protection of World Heritage in Solomon Islands and other Pacific

Island States

Information on Pacific sites on the WH List can be found in the sites’ nomination dossiers

and literature such as WH Committee decisions and reports of the Advisory Bodies.

While some sites have been the subject of academic research, there remains substantial

scope for further analysis, particularly concerning the legal issues relevant to their

conservation.

A key work on WH in the Pacific is Adam Trau’s 2013 doctoral thesis, which focused on

Chief Roi Mata’s Domain in Vanuatu.163 Trau’s study provides a detailed analysis of the

global and local dimensions of WH as they apply to that site. In papers that form part of

the Law: Protecting Immoveable Heritage in English-Speaking Countries of Sub-Saharan Africa, ICCROM Conservation Studies 8 (ICCROM, 2008) 97; Albert Mumma, ‘Legal Aspects of Cultural Landscape Protection in Africa’ in Cultural Landscapes: The Challenges of Conservation, World Heritage Papers 7 (UNESCO, 2003) 156; Albino Pereira de Jesus Jopela, ‘Traditional Custodianship: A Useful Framework for Heritage Management in Southern Africa?’ (2011) 13(2-3) Conservation and Management of Archaeological Sites 103.

161 George Abungu and Webber Ndoro, ‘Introduction’ in Webber Ndoro, Albert Mumma and George Abungu (eds), Cultural Heritage and the Law: Protecting Immoveable Heritage in English-Speaking Countries of Sub-Saharan Africa, ICCROM Conservation Studies 8 (ICCROM, 2008) 79.

162 Josephine Suzanne Gillespie, Monumental Challenges: Local Perspectives on World Heritage Landscape Regulation at Angkor Archaeological Park, Cambodia (PhD Thesis, University of Sydney, 2010). Angor Wat is not under customary tenure, it is State owned. However, many of its 10,000 occupants are governed through customary legal systems. See, also Josephine Gillespie, ‘Legal Pluralism and World Heritage Management at Angkor, Cambodia’ (2012) 14(1&2) Asia Pacific Journal of Environmental Law 1; Josephine Gillespie, ‘Buffering for Conservation at Angkor: Questioning the Spatial Regulation of a World Heritage Property’ (2012) 18(2) International Journal of Heritage Studies 194.

163 Adam M Trau, World Heritage at Chief Roi Mata’s Domain: The Global-Local Nexus of Community Heritage Conservation and Tourism Development in Vanuatu (PhD Thesis, University of Western Sydney, 2013).

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that work,164 Trau and others argue that the local communities who own the area are

integral to its protection, and the heterogeneity of views held by community members

concerning the development and conservation of their land must be recognised. They also

emphasise the need for heritage protection measures to be accompanied by locally

beneficial economic development. Other literature on Chief Roi Mata’s Domain explores

issues such as the nomination process, and key environmental, social and economic issues

influencing the site’s management and protection.165

Literature on the Kuk Early Agricultural Site in PNG is more limited, but highlights

numerous challenges associated with the nomination and management of that site.166

These include the limited capacity of the PNG government to undertake these activities,

the contested nature of the site’s land tenure, and the diversity of views held by the site’s

owners. The potential WH listing of the Kokoda Track has also been analysed in a

doctoral thesis by Amy Reggers.167 In that work, Reggers assesses the potential for a co-

management approach to be used in the management of the site and the development of

the tourism industry there. Her thesis provides insights into the complexities involved

with negotiating the development and conservation of customary land, in which multiple

stakeholders have an interest.

The other listed Pacific Island WH sites have been researched in disciplines such as

history and anthropology, but literature on their legal protection is relatively sparse. For

example, research on the Bikini Atoll WH site in Marshall Islands addresses issues such

as the site’s history, and the variation between the global and local significance of the

site.168 There is literature on the Levuka Historical Port Town in Fiji explaining the history

164 See, eg, Adam M Trau, ‘The Glocalisation of World Heritage at Chief Roi Mata’s Domain, Vanuatu’ (2012) 24(3) Historic

Environment 4; Adam M Trau, Chris Ballard, Meredith Wilson, ‘Bafa Zon: Localising World Heritage at Chief Roi Mata’s Domain, Vanuatu’ (2014) 20(1) International Journal of Heritage Studies 86; Adam M Trau, ‘Beyond Pro-Poor Tourism: Re(interpreting) Tourism-Based Approaches to Poverty Alleviation in Vanuatu’ (2012) 9(2) Tourism Planning and Development 149.

165 See, eg, Meredith Wilson, Chris Ballard and Douglas Kalotiti, ‘Chief Roi Mata’s Domain: Challenges for a World Heritage Property in Vanuatu’ (2011) 23(2) Historic Environment 5; Ballard and Wilson, above n 84, 130.

166 See, eg, Andrew Strathern and Pamela J Stewart (eds), Kuk Heritage: Issues and Debates in Papua New Guinea (University of Pittsburgh, 1998); Tim Denham, John Muke and Vagi Genorupa, ‘Nominating and Managing a World Heritage Site in the Highlands of Papua New Guinea’ (2007) 39(3) World Archaeology 324; Tim Denham, ‘Building Institutional and Community Capacity for World Heritage in Papua New Guinea: The Kuk Early Agricultural Site and Beyond’ in Anita Smith (ed), World Heritage in a Sea of Islands: Pacific 2009 Programme, World Heritage Papers 34 (UNESCO, 2012) 98; Tim Denham, ‘Traim Tasol…Cultural Heritage Management in Papua New Guinea’ in Sue O’Connor, Denis Byrne and Sally Brockwell (eds), Transcending the Culture-Nature Divide in Cultural Heritage: Views from the Asia-Pacific Region (ANU E Press, 2012) 117.

167 Amy Louise Reggers, Communities, Co-Management and World Heritage: The Case of Kokoda (PhD Thesis, University of Technology, Sydney, 2013).

168 See, eg, Nicole Baker, ‘Bikini Atoll: A Small Remote Atoll of Global Significance’ in Anita Smith (ed), World Heritage in a Sea of Islands: Pacific 2009 Programme, World Heritage Papers 34 (UNESCO, 2012) 46; Steve Brown, ‘Archaeology of Brutal Encounter: Heritage and Bomb Testing on Bikini Atoll, Republic of the Marshall Islands’ (2013) 48 Archaeology in Oceania 26; Steve Brown, ‘Poetics and Politics: Bikini Atoll and World Heritage Listing’ in Sue O’Connor, Denis Byrne and

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of the site, the range of heritage values it expresses, and the site’s nomination and

listing.169 Palau’s listed WH site (the Rock Islands Southern Lagoon) has been the subject

of substantial scientific and archaeological analysis.170 Analysis of the Phoenix Marine

Protected Area in Kiribati has also been mainly been undertaken from a scientific

perspective.171 While some of this literature refers to customary and State laws relevant

to WH conservation, it contains little analysis of the laws or their interactions.

The present research concerning Solomon Islands utilises literature such as East Rennell’s

nomination dossier, WH Committee decisions, reports prepared by the SIG and the

Advisory Bodies, correspondence between the SIG and other stakeholders, and media

reports. The analysis also draws upon the existing academic literature on the topic, which

is mainly found in heritage and archaeology journals. That existing work contains

relatively little legal analysis. For example, Smith has provided insights into the site’s

nomination and management, and the views of the East Rennellese people concerning

WH.172 However, while her work touches on legal protection issues, because of her

disciplinary focus, she does not explore them in detail. Similarly, while Kasia Gabrys and

Mike Heywood (who lived and worked at East Rennell between 2008 and 2009) have

documented aspects of their work on the island,173 they have not explored the issues

surrounding legal protection.

Literature on customary protection of East Rennell is limited. While several reports and

documents have recommended that the site’s customary protection be researched,174 this

Sally Brockwell (eds), Transcending the Culture-Nature Divide in Cultural Heritage: Views from the Asia-Pacific Region (ANU E Press, 2012) 35.

169 See, eg, Anita Smith, Sipiriano Nemani and Anaseini Kalougata, ‘Levuka, Fiji: The Heritage of Culture Contact in the Pacific’ in Anita Smith (ed), World Heritage in a Sea of Islands: Pacific 2009 Programme, World Heritage Papers 34 (UNESCO, 2012) 52; Anita Smith, ‘Levuka, Fiji: A Case Study in Pacific Islands Heritage Management’ in Ian Lilley (ed), Archaeology of Oceania: Australia and the Pacific Islands (Wiley, 2008) 346; David Harrison, ‘Levuka, Fiji: Contested Heritage?’ (2004) 7(4) Current Issues in Tourism 346.

170 See, eg, Christian Reepmeyer et al ‘Selecting Cultural Sites for the UNESCO World Heritage List: Recent Work in the Rock Islands – Southern Lagoon Area, Republic of Palau’ in Jolie Liston, Geoffrey Clark and Dwight Alexander (eds), Pacific Island Heritage: Archaeology, Identity and Community (ANU E Press, 2011) 85; W Dickinson and J Athens, ‘Holocene Paleoshoreline and Paleoenvironmental History of Palau: Implications for Human Settlement’ (2007) 2(2) Journal of Island and Coastal Archaeology 175; G R Clark, ‘A 3000-year Cultural Sequence from Palau, Western Micronesia, (2005) 44 Asian Perspectives 349; G R Clark and C Reepmeyer, World Heritage Rock Island Dossier: Cultural Sites – Report to the Palau National Commission for UNESCO for the Nomination of the Rock Islands – Southern Lagoon Area to the World Heritage List (Australian National University, 2010).

171 See, eg, Sangeeta Mangubhai et al, ‘Short-term Changes of Fish Assemblages Observed in the Near-Pristine Reefs of the Phoenix Islands’ (2014) 24 Reviews in Fish Biology and Fisheries 505; David Obura et al, ‘Baseline Marine Biological Surveys of the Phoenix Islands, July 2000’ (2011) 589 Atoll Research Bulletin 1. See also Peter Shelley, ‘Contracting for Conservation in the Central Pacific: An Overview of the Phoenix Islands Protected Area’ (2012) 106 Proceedings of the Annual Meeting – American Society of International Law 511, which contains some discussion of the site’s management plan.

172 Smith, above n 85; Smith, above n 117; Smith and Turk, above n 147. 173 Gabrys and Heywood, above n 44. 174 In 2004, the WH Committee requested that IUCN assess the state of conservation of East Rennell, including documenting and

assessing the effectiveness of the customary protection of the property: see WHC Res 28 COM 15B.12, WHC 28th sess, UN Doc WHC-04/28.COM/26 (29 October 2004) 79, 79. The 2007 East Rennell management plan identifies documenting the traditional knowledge and customary practices of the East Rennellese communities as a future management action: see Wein,

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has not yet been done in a comprehensive manner.175 Existing literature (explored in

chapter 6) does however provide some insights. For example, reports of early expeditions

to the island by anthropologists, ethnologists and others who researched the folklore,

language and religion of its people contain some information concerning customary land

tenure, practices and governance structures.176 More recent literature by Gabrys and

Heywood177 and Allen et al178 highlight some issues with contemporary customary

governance at the site. However, as noted in 1.4 above, further research to document

customary protection at East Rennell, based on multi-disciplinary empirical research, is

needed.

The analysis of the protection of East Rennell under State law is based on relevant

legislation, including the Forest Resources and Timber Utilisation Act (Cap. 40), the

Mines and Minerals Act (Cap. 42), the Environment Act 1998, the Fisheries Management

Act 2015 and the Biosecurity Act 2013. Secondary literature concerning the logging and

mining industries has also been drawn upon. For example, several scholars have explored

the weak regulation of the logging industry.179 Mining laws have been analysed less (as

the industry is newer) but research is increasingly identifying critical problems with the

above n 44, 20. Dingwall refers to the need for ‘systematic cataloguing and documentation of cultural values and traditional resource use and conservation practices’: Dingwall, above n 5, 28.

175 Some reports state that some documentation of customary protection has been undertaken. See, eg, the WH nomination dossier for East Rennell, which states that ‘surveys are underway within the four villages in the area to record the traditional use of natural resources in the forest, the lake and the sea’: see Wingham, above n 41, 38. The Statement of Outstanding Universal Value for East Rennell (adopted by the Committee in 2012) noted that a recent scoping study has begun the task of documenting customary values and traditional management practices: Adoption of Retrospective Statements of Outstanding Universal Value, WHC 36th sess, UN Doc WHC-12/36.COM/8E (15 June 2012) 55-6; WHC Res 36 COM 8E, WHC 36th sess, UN Doc WHC-12/36.COM/19 (June-July 2012) 225. However, the author’s research did not reveal any report of these surveys, so it appears they were not completed.

176 See, eg, K A J Birket-Smith, An Ethnological Sketch of Rennell Island: A Polynesian Outlier in Melanesia (Munksgaard, 2nd ed, 1969); Torben Monberg, ‘Bellona and Rennell Islanders’ in Melvin Ember, Carol R Ember and Jan Skoggard (eds), Encyclopedia of World Cultures Supplement (MacMillan, 2002) 46; Torben Monberg, ‘Crisis and Mass Conversion on Rennell Island in 1938’ (1962) 71(2) Journal of Polynesian Society 145; Torben Monberg, ‘Research on Rennell and Bellona: A Preliminary Report’ (1960) 2 Folk 71; Rolf Kuschel, ‘Early Contacts Between Bellona and Rennell Islands and the Outside World’ (1988) 23(2) Journal of Pacific History 191; Rolf Kuschel and Torben Monberg, ‘History and Oral Traditions: A Case Study’ (1977) 86(1) Journal of Polynesian Society 85; Samuel H Elbert and Torben Monberg, From the Two Canoes: Oral Traditions of Rennell and Bellona Islands (Danish National Museum and University of Hawaii Press, 1965); R G Roberts, ‘The Children of Kaitu: The Legend of the First Polynesian Adventurers to Settle on the Islands of Rennell and Bellona’ (1958) 67(1) Journal of Polynesian Society 2. Much of this material is available on the world wide web at www.bellona.dk. See Rolf Kuschel, Torben Monberg, and Torben Wolff, Bibliography of Rennell and Bellona Islands (University of Copenhagen, 2nd ed, 2001) <http://www.bellona.dk/pdf/publications//bibliography_2nd.pdf> for an excellent bibliography of literature on Rennell.

177 Gabrys and Heywood, above n 44. 178 Allen et al, above n 138. 179 See, eg, Judith Bennett, ‘Forestry, Public Land, and the Colonial Legacy in Solomon Islands’ (1995) 7(2) Contemporary

Pacific 243; Colin Filer, ‘Logging’ in Moshe Rapaport (ed), The Pacific Islands: Environment and Society (University of Hawai’i Press, 2013) 355; Ian Frazer, ‘The Struggle for Control of Solomon Island Forests’ (1997) 9(1) Contemporary Pacific 39; Matthew Allen, ‘The Political Economy of Logging in Solomon Islands’ in Ron Duncan (ed), The Political Economy of Economic Reform in the Pacific (Asian Development Bank, 2011) 277; Ian A Scales, The Social Forest: Landowners, Development Conflict and the State in Solomon Islands (PhD Thesis, Australian National University, 2003); Tarcisius Tara Kabutaulaka, ‘Rumble in the Jungle: Land, Culture and (Un)sustainable Logging in Solomon Islands’ in Antony Hooper (ed), Culture and Sustainable Development in the Pacific (ANU E Press and Asia Pacific Press, 2005) 88; Tony Hughes and Ali Tuhanuku, Logging and Mining in Rennell: Lessons for Solomon Islands. Report to the World Bank and Solomon Islands Government (2015) 19.

47

industry’s regulation.180 While this existing work helps explain the context within which

logging and mining laws operate, to date there has been no assessment of the ability of

landowners and SIG decision-makers to utilise that legislation to protect heritage sites. In

addition, there has been little academic analysis of the Environment Act 1998, with which

logging and mining companies must also comply. This thesis explores these issues and

thus contributes to the body of knowledge concerning the regulation of extractive

industries in Solomon Islands.

This thesis also considers the potential for the East Rennell WH site to be conserved

through its declaration as a ‘protected area’ under the Protected Areas Act 2010. That

law, which came into force in 2012, has not yet been thoroughly examined in academic

literature, so the analysis is based principally on the legislation itself (supplemented by

empirical research). There has also been little analysis of other similar legislation in the

Pacific. For example, Vanuatu’s Environmental Management and Conservation Act 2002

allows for the establishment of community conservation areas which share some common

characteristics with protected areas set up under the Protected Areas Act. However, the

Vanuatu Act has not been extensively analysed.181 There is therefore a vital need for

detailed examination of the Protected Areas Act in the context of WH protection,

particularly given that WH Committee is calling upon SIG to implement that law at East

Rennell. This research helps fill that gap in knowledge, by providing a comprehensive

analysis of the Act, and by identifying legal and practical issues that are likely to be

encountered in its implementation.

1.6 Key terminology

1.6.1 Customary legal systems, customary laws, customs and kastoms

This research uses the term ‘customary legal system’. Adopting Miranda Forsyth’s

description of a ‘kastom182 system’, a ‘customary legal system’ encompasses ‘traditional

norms of behaviour that are backed up by a sanction of some description (either positive

180 See, eg, Phillip Iro Tagini, The Search for King Solomon’s Gold: An Examination of the Policy and Regulatory Framework

for Mining in Solomon Islands (PhD Thesis, Australian National University, 2007); John Naitoro, ‘Mineral Resource Policy in Solomon Islands: The ‘Six Feet’ Problem’ (2000) 15(1) Pacific Economic Bulletin 132; Graham Baines, Solomon Islands is Unprepared to Manage a Minerals-Based Economy, State, Society and Governance in Melanesia Discussion Paper 2015/6 (Australian National University, 2015); Hughes and Tuhanuku, above n 179.

181 An exception is Techera, above n 145. 182 ‘Kastom’ is the pijin term for ‘custom’.

48

or negative) administered by a member or members of the local community, or a chief at

some level of the chiefly hierarchy’ as well as the processes by which disputes are dealt

with.183 The system therefore involves customary norms, governance bodies, and dispute-

resolution processes.

Customary norms are variously described in different contexts as ‘customs’ (or the

equivalent Pijin word ‘kastoms’) or ‘customary laws’. These terms are used

interchangeably in common parlance184 and some academic literature.185 They are broad

terms, subject to numerous definitions. One definition of kastom is that it encompasses

‘indigenous ideologies, relationship to and management of land, moral frameworks,

dispute management, gender relations and social organisation’.186

As explored in 2.3.1, there is some debate as to where the boundary between ‘custom’ (or

‘kastom’) and ‘customary law’ lies. It is commonly argued that a custom becomes law

through uniform practice and the peoples’ subjective belief that the norm must be

complied with,187 but in practice determining whether a custom has reached that threshold

is difficult.188 No attempt is made here to further the debate concerning the distinction

between custom and customary laws. In this thesis, the terms are used interchangeably to

describe the norms that form part of a customary legal system.

1.6.2 Customary protection and traditional protection

The term ‘customary protection’ is used in this thesis to describe the protection provided

to a heritage place through the operation of a customary legal system. The Operational

Guidelines and other literature use the term ‘traditional protection’189 to mean the same

183 Miranda Forsyth, ‘Beyond Case Law: Kastom and Courts in Vanuatu’ (2004) 35 Victoria University of Wellington Law Review

427, 431. 184 Allen et al, above n 138, 34; Sue Farran, ‘Is Legal Pluralism an Obstacle to Human Rights? Considerations from the South

Pacific’ (2006) 52 Journal of Legal Pluralism and Unofficial Law 77, 100. 185 For discussion of this issue see Jennifer Corrin Care and Jean G Zorn, ‘Legislating pluralism: Statutory ‘Developments’ in

Melanesian Customary Law’ (2001) 46 Journal of Legal Pluralism 49, 52-3. 186 Geoffrey M White, ‘Three Discourses of Custom’ (1993) 6(4) Anthropological Forum 475, 492. See also Ton Otto,

‘Transformations of Cultural Heritage in Melanesia: From Kastom to Kalsa’ (2015) 21(2) International Journal of Heritage Studies 117. Writing about Manus in Papua New Guinea, Otto states that ‘kastom refers to a wide range of things and practices, including traditional leadership and conflict mediation, ceremonial exchange and transition rituals, traditional rights to land and sea, and beliefs about illness and spirits’: at 122. See, also David Akin, ‘Ancestral Vigilance and the Corrective Conscience: Kastom as Culture in a Melanesian Society’ (2004) 4(3) Anthropological Theory 299. Akin says that kastom denotes ‘ideologies and activities formulated in terms of empowering indigenous traditions and practices’; at 299.

187 T W Bennett and T Vermeulen, ‘Codification of Customary Law’ (1980) 24(2) Journal of African Law 206, 215; Francesco Parisi, ‘The Formation of Customary Law’ (Paper presented at the 96th Annual Conference of the American Political Science Association, Washington DC, August 31 – September 3, 2000) 4.

188 Farran, above n 184, 93; Corrin Care, ‘Wisdom and Worthy Customs’ above n 138, 32. 189 See, eg, Operational Guidelines 2016, UN Doc WHC.16/01, para 97.

49

thing. In this thesis, the ‘fortress’ style approach to protected area management (which

was prevalent in Western countries in the early years of the implementation of the

Convention) is referred to as the ‘traditional’ approach. Thus, to avoid confusion, the

term ‘customary protection’ is used here rather than ‘traditional protection’.

1.6.3 Customary land, customary ownership, and customary owners

‘Customary land’ is land held pursuant to customary law. Rights over customary land

depend on the applicable customary laws, which vary throughout the Pacific (see chapter

2). Like most other relevant literature, this thesis uses the terms ‘customary ownership’

and ‘customary owners’. However, it is acknowledged that customary tenure is better

thought of as a complex and flexible system of rights and obligations, rather than a system

of ownership.190 Thus, people who have the right to occupy and/or use customary land do

not ‘own’ that land in the Western sense of that word. While it is acknowledged that

references to ‘customary ownership’ and ‘customary owners’ misrepresent the true nature

of Pacific land tenure, those terms are used for convenience purposes (see 2.3.5 for further

discussion). Legal issues associated with the terminology used in legislation to describe

people with rights to customary land are explored in chapters 7 and 8.

1.6.4 World Heritage

The term ‘WH’ is not defined in the Convention, and in fact only appears in the treaty’s

preamble.191 The Convention instead applies to ‘cultural heritage’ and ‘natural heritage’,

terms which are defined in Articles 1 and 2 respectively. Essentially, to meet one of these

definitions a heritage site must possess OUV.

In common parlance, the terms ‘WH’ or ‘WH site’ are often used to refer to a place

inscribed on the WH List. However, despite the visibility of the WH List, the Convention

does not just apply to listed heritage sites.192 Pursuant to the Convention, State parties

have obligations with respect to the protection of all properties that fall within the

190 John Fingleton (ed), Privatising Land in the Pacific: A Defence of Customary Tenures, Discussion Paper 80 (The Australia

Institute, 2005) ix. 191 World Heritage Convention preamble para 6. 192 Carducci, above n 193, 113.

50

definitions in Articles 1 and 2, irrespective of whether those sites have been nominated

for or inscribed on the WH List.193

In recognition of this, the terms ‘WH’ and ‘WH site’ are used in this thesis to refer to all

heritage sites falling within the definitions of ‘cultural heritage’ and ‘natural heritage’ in

Articles 1 and 2 of the Convention, not just those on the WH List. Where necessary for

clarity, places that meet the definitions in Articles 1 and 2 and that have been inscribed

on the WH List are referred to in this thesis as ‘listed WH sites’.

1.7 Thesis structure

As explained in 1.3, this research involved answering six questions. This thesis is divided

into four parts, which are aligned with those research questions.

Part 1 comprises this introductory chapter (chapter 1).

Part 2 addresses research questions 1 and 2. It comprises three chapters exploring the

context for WH protection in the Pacific and the application of the Convention regime in

the region.

Chapter 2 sets a foundation for the analysis in later chapters, by providing an

introduction to Pacific Island heritage, land tenure and legal systems.

Chapter 3 considers the scope for Pacific Island heritage to fall within the

Convention regime, through an exploration of the origins of the concept of

‘WH’ and its interpretation by the Committee. Issues associated with the

recognition of Pacific Island heritage as cultural or natural WH are identified.

Chapter 4 assesses the protection of Pacific Island heritage under the

Convention regime, by analysing the structure of that regime and State parties’

obligations with respect to the conservation of WH sites. The implications of

the Committee’s changing views on WH protection for the Pacific are

examined.

193 World Heritage Convention arts 4-5, 12. For analysis of these provisions, see generally Guido Carducci, ‘Articles 4 – 7

National and International Protection of the Cultural and Natural Heritage’ in Francesco Francioni (ed), The 1972 World Heritage Convention: A Commentary (Oxford University Press, 2008) 103; Federico Lenzerini, ‘Article 12 Protection of Properties Not Inscribed on the World Heritage List’ in Francesco Francioni (ed), The 1972 World Heritage Convention: A Commentary (Oxford University Press, 2008) 201.

51

In Part 3 the focus narrows to Solomon Islands. That part addresses research questions

3, 4 and 5, and comprises four chapters:

Chapter 5 analyses Solomon Islands’ early involvement in the Convention

regime, and the nomination and listing of the East Rennell WH site.

Chapter 6 explains the key threats to the WH values of East Rennell and their

potential impacts. It assesses the scope for those threats to be dealt with under

custom and through management plans. It also provides an introduction to

State heritage protection legislation, by identifying relevant laws and

explaining the context within which they operate.

Chapter 7 analyses key laws that relate to the threats to East Rennell. It covers

legislation concerning resource use (the taking of species, and logging and

mining) as well as biosecurity. It examines relevant legislative provisions, and

assesses the potential for the laws to contribute to WH conservation.

Chapter 8 considers the scope for direct protection of WH under protected

area laws. The Protected Areas Act 2010 is critically analysed, and issues that

are likely to be encountered in its implementation at East Rennell are

identified.

The thesis concludes in Part 4 (chapter 9) by answering research question 6. It identifies

options that could in time lead to incremental improvements in the protection of WH in

Solomon Islands and other Pacific Island States.

53

Part 2

World Heritage Protection

in the Pacific

55

Chapter 2: The Pacific Island context

2.1 Introduction

As will be explored throughout this thesis, many of the opportunities and challenges for

the implementation of the World Heritage Convention1 (the Convention) in the Pacific

relate to the nature of the region’s heritage, the legal systems that govern its people, and

the context within which those systems operate. This chapter therefore explores these

issues and examines their relevance to the protection of World Heritage (WH). It does not

aim to provide a comprehensive analysis of all characteristics of Pacific Island States that

impact on heritage protection, and indeed it would not be possible to do so within one

chapter. Rather, the purpose of the chapter is to identify and examine key issues that help

explain the opportunities and challenges for the protection of Pacific WH, and thus to set

a foundation for the legal analysis in later chapters.

This chapter is based on primary and secondary literature from an extensive range of

sources, in disciplines including law, heritage, natural sciences, anthropology, history,

economics and politics. It builds upon that existing work by analysing the identified issues

through a legal lens, and in the context of WH protection. While the broad scope of this

chapter risks masking the diversity that exists within the region, the commonalities shared

by Pacific Island States have been focused on to explore the relevance of this research on

Solomon Islands to other States.

The chapter begins with an examination of the nature of Pacific Island heritage, including

natural environments, landscapes reflecting the settlement and development of island

societies, and places associated with European and American contact with the region

(2.2.1). The key threats to such places are also noted (2.2.2). As will be explained, much

heritage of value to Pacific Islanders comprises landscapes and seascapes, evidencing

interactions between people and their environments. Another common feature of many

Pacific heritage sites is that they possess both natural and cultural values.

1 Convention Concerning the Protection of the World Cultural and Natural Heritage, opened for signature 16 November 1972,

1037 UNTS 151 (entered into force 17 December 1975) (‘World Heritage Convention’).

56

The chapter continues with an introduction to the legal systems of the Pacific Island

States. It explains how a legacy of colonialism is the creation of legally plural States, in

which both customary and State laws apply (2.3.1). After briefly outlining the

development of Pacific legal systems (2.3.2 and 2.3.3), the chapter demonstrates how

customary legal systems have been shaped by outside influences, but nevertheless remain

integral to the lives of most Pacific Islanders (2.3.4). Laws concerning customary land

tenure are examined in some detail, because many heritage places in the region are under

customary ownership (2.3.5).

The scope for customary and State legal systems to contribute to WH protection is then

assessed (2.4). The chapter considers the potential for customary and State legal norms to

regulate matters relevant to heritage conservation. It also explores the economic, social

and political context within which these systems operate, which influences the capacity

and willingness of both customary landowners and Pacific Island governments to protect

heritage sites. Based on this analysis, it is argued that greater understanding of how

customary and State legal systems operate and interact could improve the conservation

of the region’s spectacular natural and cultural sites.

2.2 Pacific Island heritage

Few inventories of heritage sites in the Pacific have been prepared, and those that exist

are limited in scope and/or reflect the interests of foreign researchers rather than Pacific

Islanders.2 Smith and Jones’ 2007 study of cultural landscapes,3 and Lilley’s 2010 study

of early human expansion in the region4 significantly enhanced the body of knowledge

concerning Pacific heritage. However, the character and diversity of culturally significant

sites has not yet been comprehensively documented.5 Similarly, few ecosystems in the

Pacific have been thoroughly researched.6 Despite these gaps, literature demonstrates that

2 Ian Lilley and Christophe Sand, ‘Thematic Frameworks for the Cultural Values of the Pacific’ in Anita Smith (ed), World

Heritage in a Sea of Islands: Pacific 2009 Programme, World Heritage Papers 34 (UNESCO, 2012) 22, 24, 26. 3 Anita Smith and Kevin L Jones (eds), Cultural Landscapes of the Pacific Islands (ICOMOS, 2007). 4 Ian Lilley (ed), Early Human Expansion and Innovation in the Pacific: Thematic Study (ICOMOS, 2010). 5 Lilley and Sand, above n 2, 24. 6 See, eg, Hugh Govan et al, Status and Potential of Locally-Managed Marine Areas in the South Pacific: Meeting Nature

Conservation and Sustainable Livelihood Targets Through Wide-Spread Implementation of LMMAs (SPREP/WWF/WorldFish-Reefbase/CRISP, 2009), 16; Gunnar Keppel et al, ‘Isolated and Vulnerable: The History and Future of Pacific Island Terrestrial Biodiversity’ (2014) 20(2) Pacific Conservation Biology 136, 141; Matt McIntyre, Pacific Environment Outlook (United Nations Environment Programme and the Secretariat of the Pacific Regional Environment Programme, 2005) 1, ch 2.

57

the region’s heritage places are diverse and face a range of threats, so no one form of

heritage protection legislation will be appropriate and effective at all sites.

2.2.1 Forms of heritage prevalent in the Pacific region

(A) Heritage comprising the ‘natural’ environment of the Pacific Islands

The Pacific region comprises diverse marine and terrestrial ecosystems. Its marine areas

range from deep ocean trenches to coral reefs and large enclosed lagoons,7 and support

more marine biodiversity than any other region.8 Within the expansive Pacific Ocean lie

thousands of islands, with varied geologies, topographies, ecologies and climates.9 They

include ‘continent’-like landmasses, high volcanoes, atolls and raised coral limestone

islands.10 Many are home to a variety of terrestrial species, some of which are endemic

(i.e. unique to that place). Biodiversity and endemism are particularly high in the west of

the region (including in Solomon Islands),11 but much lower in areas where islands are

smaller and more remote.12

The terrestrial and marine environments of the Pacific comprise the natural heritage of

the region. However, few are pristine. Direct and indirect human influences on island

environments began when the region was first settled, resulting in impacts that varied

from marginal disruption to much more significant changes.13 Some environmental

change was caused as settlers attempted to make their new island homes more ‘familiar

and manageable’14 by introducing new plants (such as coconut, banana, taro, yam,

cassava, paw paw and breadfruit) and animals (including pigs, dogs and chickens).15

7 See, eg, Richard Herr, ‘Environmental Protection in the South Pacific: The Effectiveness of SPREP and its Conventions’ in

Olav Schram Stokke and Øystein B Thommessen (eds), Yearbook of International Co-operation on Environment and Development 2002/2003 (Earthscan Publications, 2002) 41, 43.

8 See, eg, Govan et al, above n 6, 16. 9 See, eg, Anita Smith, ‘The Cultural Landscapes of the Pacific Islands’ in Anita Smith and Kevin L Jones (eds), Cultural

Landscapes of the Pacific Islands (ICOMOS, 2007) 17, 18. 10 See, eg, Paul Dingwall, ‘Pacific Islands World Heritage Tentative Lists’ in Anita Smith (ed), World Heritage in a Sea of

Islands: Pacific 2009 Programme, World Heritage Papers 34 (UNESCO, 2012) 28, 30; Stuart Chape, ‘Natural World Heritage in Oceania: Challenges and Opportunities’ in Anita Smith (ed), World Heritage in a Sea of Islands: Pacific 2009 Programme, World Heritage Papers 34 (UNESCO, 2012) 40, 40.

11 See, eg, Barry Cox and Peter Moore, Biogeography: An Ecological and Evolutionary Approach (Oxford, 1980) 109-11. 12 See, eg, Smith, above n 9, 18. 13 See, eg, Patrick D Nunn, ‘Nature-society interactions in the Pacific Islands’ (2013) 85(4) Geografiska Annaler, Series B,

Human Geography 219, 222; Frank R Thomas, ‘The Precontact Period’ in Moshe Rapaport (ed), The Pacific Islands: Environment and Society (University of Hawai’i Press, 2013) 125, 133-134.

14 John R McNeill, ‘Of Rats and Men: A Synoptic Environmental History of the Island Pacific’ (1994) 5(2) Journal of World History 299, 304.

15 See, eg, Ibid 304; Nunn, above n 13, 219; Smith, above n 9, 28.

58

Settlers caused other changes by clearing and burning forest,16 cultivating land,17

constructing permanent features, altering fresh water resources,18 and hunting native

fauna species.19

On some islands, settlers caused considerable environmental degradation. The clearing

and torching of land to allow for shifting cultivation and garden crops altered island

vegetation, and increased erosion and soil degradation.20 Island animals were vulnerable

to the introduction of fauna species and other human activities because they evolved in

areas with few terrestrial predators.21 Consequently, settlers caused the extinction of some

fauna species, particularly ground-dwelling birds,22 and marine creatures were often

depleted due to over-harvesting.23

Pacific Island settlers not only modified their environment to suit their livelihoods, but

also developed customary laws regulating the use and management of their land and

natural resources. Today, many Pacific Islanders still possess ‘deep traditional knowledge

about their sea and forests and elaborate traditional practices expressed through dances

and customary rites of their environment’, which evidences their close connection with

their environment.24

In regions such as the Pacific, where Indigenous people continue to possess cultural and

spiritual connections with their environment, the concepts of ‘nature’ and ‘culture’ may

overlap.25 A key characteristic of Pacific Island heritage is therefore that the distinction

between ‘cultural heritage’ and ‘natural heritage’ is often blurred.26 This presents a

16 See, eg, Patrick V Kirch, ‘Late Holocene Human-Induced Modifications to a Central Polynesian Island Ecosystem’ (1996) 93

Proceedings of the National Academy of Sciences 5296, 5296. 17 See, eg, Chape, above n 10, 40. 18 See, eg, Smith, above n 9, 28. 19 See, eg, Nunn, above n 13, 219. 20 See, eg, McNeill, above n 14, 306-307; Keppel et al, above n 6, 138. 21 See, eg, McNeill, above n 14, 302; Keppel et al, above n 6, 136. 22 See, eg, David W Steadman, ‘Prehistoric Extinctions of Pacific Island Birds: Biodiversity Meets Zooarchaeology’ (1995) 267

Science 1123; Stacy Jupiter, Sangeeta Manguhai and Richard T Kingsford, ‘Conservation of Biodiversity in the Pacific Islands of Oceania: Challenges and Opportunities’ (2014) 20(2) Pacific Conservation Biology 206, 206; McNeill, above n 14, 305-307.

23 See, eg, McNeill, above n 14, 305. 24 Eric L Kwa, ‘Climate Change and Indigenous People in the South Pacific’ (Paper presented at IUCN Academy of

Environmental Law Conference on ‘Climate Law in Developing Countries Post-2012: North and South Perspectives’, Ottawa, Canada, 26 – 28 September 2008) 3.

25 Darrell Addison Posey, ‘Introduction: Culture and Nature – The Inextricable Link’ in Darrell Addison Posey (ed), Cultural and Spiritual Values of Biodiversity (UNEP, 1999) 1, 7.

26 See, eg, Paige West and Dan Brockington, ‘An Anthropological Perspective on Some Unexpected Consequences of Protected Areas’ (2006) 20(3) Conservation Biology 609, 611; Giovanni, Boccardi, ‘The World Heritage Pacific 2009 Programme: Addressing the Aims of the Global Strategy in the Pacific Regions’ in Anita Smith (ed), World Heritage in a Sea of Islands: Pacific 2009 Programme, World Heritage Papers 34 (UNESCO, 2012) 12,12; Chris Ballard and Meredith Wilson, ‘Unseen Monuments: Managing Melanesian Cultural Landscapes’ in Ken Taylor and Jane L Lennon (eds), Managing Cultural Landscapes (Routledge, 2012) 130, 134; Anita Smith and Cate Turk, ‘Customary Systems of Management and World Heritage

59

challenge for the implementation of the Convention, which deals separately with cultural

and natural sites (see 3.3.1). It also raises questions about the appropriateness of Pacific

sites being recognised as natural WH sites (see 3.3.2).

(B) Heritage reflecting the settlement and development of Pacific Island societies

Large-scale monuments are relatively rare in the Pacific region.27 More commonly,

Pacific heritage places exemplify the settlement of the Pacific Islands and the

development of islander societies.

Some commonalities and differences that exist across the Pacific can be explained with

reference to the three geo-cultural regions: Melanesia, Micronesia and Polynesia28 (see

Figure 13). There are limitations associated with any analysis based on these geo-cultural

divisions. Such an analysis risks masking significant variation within the regions. In

addition, characteristics attributed to one region may be found elsewhere in the Pacific.

The geo-cultural divisions do however help to explain some important characteristics of

Pacific Islanders. For example, as discussed below, the three regions were settled at

different times and from different sources, contributing to the cultural and ethnic diversity

of Pacific Islanders.29

in the Pacific Islands’ in Sue O’Connor, Denis Byrne and Sally Brockwell (eds), Transcending the Culture-Nature Divide in Cultural Heritage: Views from the Asia-Pacific Region (ANU E Press, 2012) 22, 29; Identification of World Heritage Properties in the Pacific: Second World Heritage Global Strategy Meeting for the Pacific Islands Region (Port Vila, Vanuatu, 24 – 27 August 1999) preamble para 6. For discussion of the link between cultural and natural heritage generally see Ben Boer and Stefan Gruber, ‘Heritage Discourses’ in Brad Jessup and Kim Rubenstein (eds), Environmental Discourses in Public and International Law Cambridge University Press, 2012) 375, 376-7.

27 Ballard and Wilson, above n 26, 130. 28 Of the Pacific Island States, Fiji, Papua New Guinea, Solomon Islands and Vanuatu are within Melanesia; Cook Islands, Niue,

Samoa, Tonga and Tuvalu are within Polynesia; and Federated States of Micronesia, Kiribati, Marshall Islands, Nauru and Palau are within Micronesia.

29 For more comprehensive discussion of the settlement of the region, see, eg Donald Denoon, ‘Human Settlement’ in Donald Denoon, Malama Meleisea, Stewart Firth, Jocelyn Linnekin and Karen Nero (eds), The Cambridge History of Pacific Islanders (Cambridge University Press, 2008) 37.

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Figure 13: Map of the Pacific showing geo-cultural regions (Melanesia, Polynesia and Micronesia) Map made with data from Natural Earth. Free vector and raster map data @ naturalearthdata.com.

The first phase of settlement of Melanesia occurred between 30,000 and 50,000 years

ago, and involved the settlement of ‘Near Oceania’ (New Guinea, the Bismarck

Archipelago and Solomon Islands).30 These migrants, often referred to as Papuans, lacked

the technology to migrate any further than the Solomon Islands, so settlement stalled there

for thousands of years.31 Around 4,000 years ago, Austronesians (a Southern Mongoloid

population from southern China) arrived in the region.32 Their technologies enabled

sailing crews to survive longer at sea, allowing them to settle the eastern parts of Papua

New Guinea (PNG).33 From there, settlement expanded multi-directionally,34 with the

Austronesians reaching outer Solomon Islands, Vanuatu, New Caledonia, Fiji, Tonga and

Samoa by around 3,000 years ago.35 Settlement paused there for over 1,000 years.36

During the next phase of settlement, which started between AD 700 and AD 1, 000,

settlers continued their expansion beyond Samoa, to settle eastern Polynesia.37 In the

30 See, eg, Geoffrey Irwin, ‘Navigation and Seafaring’ in Ian Lilley (ed), Early Human Expansion and Innovation in the Pacific:

Thematic Study (ICOMOS, 2010) 47, 51; Smith, above n 9, 22. 31 See, eg, Ron Crocombe, The South Pacific (University of the South Pacific, 2001) 44. 32 See, eg, ibid 45. 33 See, eg, Irwin, above n 30, 51. 34 See, eg, Steven Roger Fischer, A History of the Pacific Islands (Palgrave Macmillan, 2nd ed, 2013), 16. 35 See, eg, Nunn, above n 13, 220. 36 See, eg, Thomas, above n 13, 127. 37 See, eg, Irwin, above n 30, 52.

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same era, some Polynesians ventured westward, establishing settlements on the outlying

islands in Melanesia and Micronesia. These islands are now referred to as ‘Polynesian

Outliers’,38 and include Rennell in Solomon Islands which was settled by people from the

Wallis and Futuna group.39 Hence, while most Solomon Islanders are of Melanesian

decent, the Rennellese are Polynesian. One consequence of this is that some customary

laws of the Rennellese people (including their land tenure system) differ significantly

from those in other parts of Solomon Islands (see 6.3.1).

Settlement of Micronesia began around 3,500 years ago, but some islands were only

settled during the last millennium.40 Current evidence suggests settlers arrived from

several sources, including early movements from South East Asia, and later movements

from Melanesia and Polynesia,41 contributing to the considerable cultural diversity within

that region.42

Pacific heritage places can help us understand early human expansion throughout the

region. These places include archaeological sites, but also landscapes reflecting the

settlement and development of island societies.43 Some such landscapes contain evidence

of the settlers’ transportation and adaption of systems of agriculture and land tenure, while

others demonstrate the location and layout of traditional villages, and contain physical

features that Pacific Islanders have constructed like burial places, fences and gardens.44

Pacific landscapes may be relics, or they may play an active role in contemporary society

because of the continuing living traditions associated with them.45 The continuity of these

traditions is commonly demonstrated through stories, and through customary knowledge

and practices.46 Intertwined with these traditions are the customary legal systems

(including land tenure systems) of the sites’ owners, which also form part of the heritage

of the region. Indigenous customary law is itself a critical element of Indigenous culture.47

38 Smith, above n 9, 24. 39 See, eg, Elspeth J Wingham, Nomination of East Rennell, Solomon Islands by the Government of Solomon Islands for Inclusion

in the World Heritage List Natural Sites (1997) 23. 40 See, eg, Smith, above n 9, 24. 41 See, eg, Michiko Intoh, ‘Human Dispersal into Micronesia’ (1997) 105 Anthropological Science 15. 42 See, eg, Smith, above n 9, 22. 43 Lilley (ed), above n 4. 44 Smith, above n 9, 32-45. 45 Smith, above n 9, 58. 46 Ibid. 47 S. James Anaya, ‘International Human Rights and Indigenous Peoples: The Move Toward the Multicultural State’ (2004)

21(1) Arizona Journal of International and Comparative Law 13, 49.

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Thus, a place may gain its heritage significance from the traditions, customary laws and

governance systems that are associated with it.

These characteristics distinguish the cultural heritage of the Pacific from many other

regions, which has two key implications for this research. Firstly, the WH Committee’s

early focus on the preservation of the types of heritage prevalent in Western States for

many years hampered the recognition of Pacific landscapes on the WH List (see

3.3.2(A)). Secondly, the protection of Pacific landscapes will often require different

approaches to those employed in other regions (see chapter 4).

(C) Heritage reflecting European and American contact with the Pacific Islands

Pacific Island heritage also comprises sites and landscapes reflecting contact made by

Europeans and Americans with Pacific Islanders. Evidence of events such as the

conversion of Pacific Islanders to Christianity, colonisation, and activities associated with

World War II, contribute to the diverse heritage of the region.

The first European contact with the Pacific occurred around 500 years ago, when the

Portuguese arrived at the west of the region and the Spanish arrived at the east.48 In the

early 19th century, European and Americans began to travel to the Pacific to exploit

resources like sandalwood, beche de mer,49 pearl shell and whale oil.50 However, these

activities did not require large permanent settlements,51 so they did not leave a legacy of

heritage places. Greater changes to Pacific Island societies were caused by missionaries,

who visited the Pacific from around 1800 and quickly converted much of the population

to Christianity.52 The work of missionaries is evidenced in the region’s architecturally

distinct and diverse churches, and the location and layout of villages53 (as people were

often moved from their traditional communities to larger settlements based around a

church). Missionaries also influenced Pacific Island heritage by prohibiting some

customary practices they considered to be pagan54 (see 2.3.4).

48 See, eg, David A Chappell, ‘The Postcontact Period’ in Moshe Rapaport (ed), The Pacific Islands: Environment and Society

(University of Hawai’i Press, 2013) 138, 138.. 49 Beche de mer is processed from holothurians, commonly known as sea cucumbers. 50 Smith, above n 9, 25. 51 Ibid 26. 52 See, eg, John Barker, ‘Religion’ in Moshe Rapaport (ed), The Pacific Islands: Environment and Society (University of Hawai’i

Press, 2013) 214. 53 Smith and Jones (eds), above n 3, 56. 54 Fischer, above n 34, 109.

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Although colonisation occurred relatively late in the Pacific, by 1900 all Pacific Islands

except Tonga55 were controlled by foreign States,56 including Solomon Islands which

became a British protectorate in 1893.57 Some heritage places in the region reflect the

process of colonisation in an island environment, and interactions between the colonisers

and the population.58 For example, colonisation was accompanied by the establishment

of large scale extractive industries such as mining and plantations,59 which impacted

Pacific landscapes including through the disruption of customary practices and tenure

systems.

Many significant battles of World War II occurred in the Pacific, causing loss of life, the

destruction of villages and gardens, and damage to island landscapes.60 In Vanuatu,

Solomon Islands, PNG and some Micronesian islands tangible evidence of the war can

be seen in sites evidencing key battles, intensive bombing, large scale construction (such

as airfields) and the use of wartime machinery.61 Nuclear weapons testing carried out by

the United States and France forever changed the natural and cultural heritage of some

parts of the region, including the Marshall Islands.62 Sites reflecting these important

global events form part of the rich heritage of the region. However, as will be discussed

in 3.3.2, the global and local significance of such a site may be very different, which can

influence local peoples’ involvement in the site’s protection.

2.2.2 Threats to Pacific Island heritage

The region’s biodiversity is vulnerable as many islands are small and host unique

species.63 While some environmental change in the Pacific Islands was caused by early

settlers (see 2.2.1(A)), the rate of change accelerated with the arrival of Europeans and

Americans.64 Agricultural expansion, plantations and extractive industries are continuing

55 Tonga was a protectorate of the United Kingdom between 1900 and 1970, but even during this period Tonga maintained its

sovereignty. 56 See generally Fischer, above n 34, 125-174. 57 Pacific Order in Council 1893 (UK). 58 Smith, above n 9, 54-56. 59 Ibid 54. 60 Smith, above n 9, 51-54. 61 Ibid. 62 Ibid. 63 See, eg, Jupiter, Manguhai and Kingsford, above n 22, 206; Catherine Giraud-Kinley, ‘The Effectiveness of International

Law: Sustainable Development in the South Pacific Region’ (1999-2000) 12 Georgetown Environmental Law Review 125, 133.

64 See, eg, Jupiter, Manguhai and Kingsford, above n 22, 207, 210.

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to damage Pacific habitats, driven by forces such as population growth, urbanisation and

increasing consumption.65 Marine biodiversity is also being affected by over exploitation,

a shift from subsistence to commercial operations and destructive fishing methods,66 as

well as land based activities that damage coastal vegetation and cause sedimentation and

marine pollution.67 Further threatening heritage, social and economic changes are

contributing to the loss of traditional knowledge and the weakening of customary

governance.

Compounding these threats are the effects of climate change, which are likely to be

profound in the Pacific. Sea level rise will cause the loss of habitable land on many

islands, and increasingly frequent and intense storms may affect biodiversity, fisheries

and crops.68 These changes will affect Pacific landscapes, as well as national economies

and the livelihoods of many people. Pacific Island governments already face the difficult

task of balancing development with heritage protection (see 2.4.1), and climate change is

likely to increase that challenge.

Some activities that threaten heritage are driven by Pacific Island governments and multi-

national companies seeking to benefit from development, whilst others are undertaken (or

at least authorised) by Pacific Islanders themselves. Traditionally, people in the region

relied on subsistence agriculture supplemented by fishing, gathering and hunting for their

livelihoods.69 Today, most subsistence based economics are increasingly becoming

commercialised,70 and the food security of many islanders is being comprised by

urbanisation, population growth and declining crop yields.71 In addition, globalisation and

modernisation have influenced food preferences and livelihood choices, and Pacific

Islanders increasingly want to participate in the cash economy. Limited opportunities for

paid work72 lead some to authorise tourism, agriculture, extractive industries, and other

65 See, eg, P Gerbeaux et al, Shaping a Sustainable Future in the Pacific: IUCN Regional Programme for Oceania 2007-2012

(IUCN, 2007) 3-5. 66 See, eg, Michael King, Ueta Fa’asili, Semisi Fakahau and Aliti Vunisea, Strategic Plan for Fisheries Management and

Sustainable Coastal Fisheries in the Pacific Islands (Secretariat of the Pacific Community, 2003) 1. 67 See, eg, Vina Ram-Bidesi, ‘Ocean Resources’ in Moshe Rapaport (ed), The Pacific Islands: Environment and Society

(University of Hawai’i Press, 2013) 364, 375. 68 See, eg, Lai Murari, ‘Implications of Climate Change in Small Island Developing Countries of the South Pacific’ (2004) 2(1)

Fijian Studies 15; United Nations Office of the High Representative for the Least Developed Countries, Landlocked Developing Countries and Small Island Developing States (UN-OHRLLS), Small Island Developing States: Small Islands Big(ger) Stakes (UN, 2011).

69 See, eg, Anette Reenberg et al ‘Adaption of Human Coping Strategies in a Small Island Society in the SW Pacific: 50 Years of Change in the Coupled Human-Environment system on Bellona, Solomon Islands’ (2008) 3(6) Human Ecology 807, 807.

70 United Nations Environment Programme (UNEP) Pacific Islands Environment Outlook (UNEP, 1999) xi. 71 See, eg, Reenberg et al, above n 69, 808; Donovan Storey and David Abbott, ‘Development Prospects’ in Moshe Rapaport

(ed), The Pacific Islands: Environment and Society (University of Hawai’i Press, 2013) 417, 420. 72 See, eg, Storey and Abbott, above n 71, 421.

65

developments on their land in return for cash and in-kind payments, which can damage

heritage places. Consequently, heritage protection in the Pacific is often intimately related

to both national and local economic development.

As Pacific heritage sites are diverse and face a range of threats, different approaches will

be required to secure their protection. However as explained in the next section, all Pacific

Island States exhibit legal pluralism and most have high rates of customary land

ownership. These characteristics provide a common link between many heritage places

in the region.

2.3 Pacific Island legal systems

‘Legal pluralism’ is commonly referred to as the existence of two or more legal orders in

the same social field.73 It is therefore not a characteristic of a law or legal system, but of

a social field (for example, a nation, region or community).74 Pacific Island States are

legally plural, in part because their Indigenous and colonial histories have created both

customary and State legal systems. This section begins by explaining the concept of legal

pluralism and its relevance to this research (2.3.1). An introduction to the development

and contemporary relevance of customary and State legal systems in the Pacific is then

provided (2.3.2– 2.3.5), laying the foundation for later analysis concerning their role in

heritage protection (2.4).

2.3.1 The concept of legal pluralism and its application in the Pacific Islands

Legal pluralism gained attention during the 1970s, as legal analysis of governance

arrangements in former colonies became more common.75 Due to its origins, the early

focus of legal pluralism was on the relationship between customary and State legal norms

73 Sally Engle Merry, ‘Legal Pluralism’ (1988) 22 Law and Society Review 869, 870; John Griffiths, ‘What is Legal Pluralism?’

(1986) 24 Journal of Legal Pluralism 1, 12. 74 Griffiths, above n 73, 38. 75 Simon Roberts, ‘Against Legal Pluralism: Some Reflections on the Contemporary Enlargement of the Legal Domain’ (1998)

42 Journal of Legal Pluralism and Unofficial Law 95, 97. For a comprehensive analysis of the development of concept see, eg, Miranda Forsyth, A Bird That Flies with Two Wings: Kastom and State Justice Systems in Vanuatu (ANU E Press, 2009), ch 2; Brian Z Tamanaha, ‘Understanding Legal Pluralism: Past to Present, Local to Global’ (2008) 30 Sydney Law Review 375, 377-390.

66

and institutions.76 Sally Engle Merry, a much-cited legal pluralism academic, described

this field of study as ‘classic legal pluralism’. 77

Since the 1970s, the concept has expanded to encompass other forms of non-State law in

both colonised and non-colonised societies. This broader definition (described by Merry

as ‘new legal pluralism’) considers the ‘complex and interactive relationship between

official and unofficial forms of ordering’.78 In addition to local, national, regional and

international legal systems, new legal pluralism facilitates consideration of customary,

religious, economic, community and other non-State systems.79 Pursuant to this broader

definition, most, if not all, societies exhibit legal pluralism.80 However, it is often

experienced more intensely in developing countries (such as the Pacific Island States)

because of the diversity of legal systems that operate there, the qualitative differences

between them, and the lack of an effective overarching framework for regulating their

interactions.81

As explained further in the sections below, in the Pacific customary legal systems were

developed by islanders over time to regulate their daily commerce, civil life and land

tenure.82 When the islands became colonies and protectorates, new laws enacted by the

colonial legislature or the controlling country were introduced, but customary systems

continued to operate often with the sanction of the controlling nations.83 At independence,

the States adopted systems of law and governance reflecting the outgoing colonial

governments, but customary systems remained highly relevant to most Pacific Islanders.

Independence also led to the States becoming subject to international legal norms (such

as the Convention) and other forms of law, further enriching their legal pluralism.

Legal pluralism is contrary to the theory of legal centralism, which posits that ‘law is and

should be the law of the state, uniform for all persons, exclusive of all other law, and

administered by a single set of state institutions’.84 Miranda Forsyth (who has

76 Tamanaha, above n 75, 390. 77 Merry, above n 73, 872. 78 Merry, above n 73, 873. 79 See, eg, Tamanaha, above n 75, 397-399. 80 Merry, above n 73, 873, 879; Tamanaha, above n 75, 375. 81 Caroline Sage and Michael Woolcock, ‘Introduction’ in Bran Z Tamanaha, Caroline Sage and Michael Woolcock (eds), Legal

Pluralism and Development: Scholars and Practitioners in Dialogue (Cambridge University Press, 2012) 1, 9. 82 See, eg, Stephan Klingelhofer and David Robinson, The Rule of Law, Custom and Civil Society in the South Pacific: An

Overview (International Center for Not-for-Profit Law, 2001) 10. 83 See, eg, Jennifer Corrin, ‘Customary Land and the Language of the Common Law’ (2008) 37 Common Law World Review

305, 309. 84 Griffiths, above n 73, 3.

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comprehensively analysed the development of legal pluralism) notes that while some

commentators contend that the concept enjoys wide support,85 others have challenged that

proposition.86 As Forsyth notes, this may be because the concept is subject to several

theoretical debates, including how to define the concept of ‘law’.87 Non-State norms exist

on a spectrum, ranging from prohibitions that non-State officials may enforce through

sanctions, to norms that constitute mere etiquette or good manners.88 This raises the

question of ‘where do we stop speaking of law and find ourselves simply describing social

life?’89 In the Pacific context, this question is most acutely seen in a consideration of when

‘customs’ may be considered law.

Custom can be described as the ‘social norms and practices that make up local approaches

to dispute management and everyday social regulation in communities’.90 It is therefore

a broad term, encompassing things like traditional leadership systems, conflict mediation,

ceremonial exchange, beliefs, and rights to land, sea and resources.91 ‘Customary law’ is

a component of the broader concept of custom.92 However, this begs the question of how

to distinguish customary laws from other customs. It is commonly argued that a custom

becomes law through uniform practice and the peoples’ subjective belief that the norm

must be complied with,93 but in practice determining whether a custom has reached that

threshold is difficult.94 Issues that complicate the analysis include how widespread

customary rules must be before they can be classified as laws,95 and how long it takes for

a custom to transform into a law.96

85 See, eg, John Griffiths, ‘Legal Pluralism and the Theory of Legislation – With Special Reference to the Regulation of

Euthanasia’ in Hanne Petersen and Henrik Zahle (eds), Legal Polycentricity: Consequences of Pluralism in Law (Hanne Peterson, 1995), 210, cited in Gordon Woodman, ‘Why There Can be No Map of Law’, Legal Pluralism and Unofficial Law in Social, Economic and Political Development: Papers of the XIIIth International Congress of the Commission on Folk Law and Legal Pluralism (Chiangmai, Thailand, 7–10 April, 2002) 383; cf Alan Watson, ‘An Approach to Customary Law’ (1984) 3 University of Illinois Law Review 561. Watson argues that custom only becomes law through recognition by the State: at 576.

86 Forsyth, above n 75, 38. 87 Ibid. 88 Gordon R Woodman, ‘Ideological Combat and Social Observation: Recent Debate About Legal Pluralism’ (1998) 42 Journal

of Legal Pluralism and Unofficial Law 21, 44. 89 Merry, above n 73, 878. 90 Matthew Allen et al, Justice Delivered Locally: Systems, Challenges and Innovations in Solomon Islands (World Bank, 2013)

34. 91 Ton Otto, ‘Transformations of Cultural Heritage in Melanesia: From Kastam to Kalsa’ (2015) 21(2) International Journal of

Heritage Studies 117, 122. 92 Miranda Forsyth, ‘Beyond Case Law: Kastom and Courts in Vanuatu’ (2004) 35 Victoria University of Wellington Law Review

427, 429. 93 T W Bennett and T Vermeulen, ‘Codification of Customary Law’ (1980) 24(2) Journal of African Law 206, 215; Francesco

Parisi, ‘The Formation of Customary Law’ (Paper presented at the 96th Annual Conference of the American Political Science Association, Washington DC, August 31 – September 3, 2000) 4.

94 Sue Farran, ‘Is Legal Pluralism an Obstacle to Human Rights? Considerations from the South Pacific’ (2006) 52 Journal of Legal Pluralism and Unofficial Law 77, 93; Corrin Care, Jennifer, ‘Wisdom and Worthy Customs: Customary Law in the South Pacific’ (2002) 80 Reform 31, 32.

95 Corrin Care, above n 188, 32. 96 Parisi, above n 187, 5.

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Tamanaha contends that the lack of any clear definition of what constitutes a ‘law’ places

the concept of legal pluralism on tenuous footing.97 Others contend there is little utility

in attempting to formulate such a definition.98 For example, Twining proposes that the

distinctions between legal and other norms are largely unnecessary because ‘in most

contexts not much turns on where, or even, whether the line is drawn’.99 This argument

is particularly strong in the Pacific where, as will be explained below, the customary

system is central to the lives of many and the State often only has marginal significance

(see 2.3.4). No attempt is made here to further this debate, and the terms ‘custom’ and

‘customary law’ are used interchangeably.

2.3.2 The development of customary legal systems in the Pacific region

There is no single customary legal system in the Pacific region, or within any Pacific

Island State. Rather, numerous distinct customary legal systems developed, as the

traditional settlers transported and adapted laws and governance models to suit their

island environments. Cultural diversity is greatest in Melanesia, because it contains the

region’s largest landmass (New Guinea), settlement began up to 50,000 years ago, and a

mixing of Papuan and Austronesian cultures occurred there.100 Consequently, Melanesian

customary legal systems vary from island to island, and sometimes even from village to

village,101 often coinciding with different linguistic and ethnic groups.102 In contrast,

cultures developed much later in Polynesia and Micronesia.103 Polynesian countries like

Samoa, Tonga and Tuvalu comprise one dominant cultural group and little linguistic

diversity, and are thus among the most ethnically homogeneous societies in the world

97 Tamanaha, above n 75, 392. 98 Woodman, above n 88, 45; Merry, above n 73, 889; William Twining, ‘Legal Pluralism 101’ in Brian Z Tamanaha, Caroline

Sage and Michael Woolcock (eds), Legal Pluralism and Development: Scholars and Practitioners in Dialogue (Cambridge University Press, 2012) 112, 114.

99 Twining, above n 98, 114. 100 Fischer, above n 34, 25-27. See generally Ann Gibbons, ‘Genes Point to a New Identity for Pacific Pioneers’ (1994) 263(5143)

Science 32. 101 Jennifer Corrin Care and Jean G Zorn, ‘Legislating pluralism: Statutory ‘Developments’ in Melanesian Customary Law’

(2001) 46 Journal of Legal Pluralism 49, 53, 71; Jennifer Corrin Care and Jean G Zorn, ‘Legislating for the Application of Customary Law in Solomon Islands’ (2005) 34 Common Law World Review 144, 145; Jennifer Corrin, ‘A Question of Identity: Complexities of State Law Pluralism in the South Pacific’ (2010) 61 Journal of Legal Pluralism and Unofficial Law 145, 147; Edvard, Hviding, ‘Contextual Flexibility: Present Status and Future of Customary Marine Tenure in Solomon Islands’ (1998) 40 Ocean and Coastal Management 253, 256.

102 Nicholas Menzies, Legal Pluralism and the Post-Conflict Transition in the Solomon Islands (Hertie School of Governance, Berlin, 2007) 4.

103 Fischer, above n 34, 28-42.

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today.104 Micronesian culture is also relatively homogenous.105 In some countries in these

regions, a customary law may apply country-wide.106

Customary laws originally developed when Pacific Islanders had no knowledge of writing

or printing, so they were communicated orally and by actions.107 While Pacific Islanders

are increasingly documenting their customary laws,108 most remain unwritten. The oral

nature of customary laws allows them to be applied flexibly and adapted to suit new

situations,109 and has facilitated their continuing evolution (see 2.3.4).

Traditionally, customary laws gained their legitimacy from some form of customary

authority within a governance arrangement.110 Although governance systems varied, most

Pacific Islanders lived in separate communities controlled by one or more chiefs or other

leaders, who regulated peoples’ lives based on the community’s customary laws.111

Marshall Sahlins developed the much-cited classic model of Pacific Islander

governance.112 This model describes Polynesian chiefs as gaining their rank through

inheritance, with power residing in the position of ‘chief’, rather than an individual

person. The limited scholarship on Micronesian governance suggests that this model

applied in that region as well.113 In contrast, the model describes Melanesia as comprising

‘big man’ societies, where leaders achieved their status, rather than inheriting it.114 For

example, a leader might gain status through their skills and their involvement with the

community, which allowed them to achieve wealth and distribute it, thus gaining favour

among the community members.115 These leaders tended to exert authority over smaller

political units than Polynesian chiefs, so Melanesia has traditionally been characterised

by greater social fragmentation than other parts of the Pacific.116

104 Benjamin, Reilly, ‘State Functioning and State Failure in the South Pacific’ (2004) 58(4) Australian Journal of International

Affairs 479, 480. 105 Andrew Pawley, ‘Language’ in Moshe Rapaport (ed), The Pacific Islands: Environment and Society (University of Hawai’i

Press, 2013) 159, 160. 106 Corrin, Jennifer and Don Paterson, Introduction to South Pacific Law (Palgrave MacMillan, 3rd ed, 2011) 40. 107 See, eg, Corrin, above n 79, 309. 108 Allen et al, above n 90, 72; Miranda Forsyth, The Writing of Community By-Laws and Constitutions in Melanesia: Who?

Why? Where? How? State, Society and Governance in Melanesia In Brief (The Australian National University, 2014). 109 See, eg, Hviding, above n 101, 255. 110 Allen et al, above n 90, 34. 111 Corrin and Paterson, above n 106, 1. 112 Marshall D Sahlins, ‘Poor Man, Rich Man, Big-Man, Chief: Political Types in Melanesia and Polynesia’ (1963) 5(3)

Comparative Studies in Society and History 285. 113 McLeod, Abby, Leadership Models in the Pacific, State, Society and Governance Discussion Paper (The Australian National

University, 2008) 10-11. 114 Sahlins, above n 112. 115 Ibid. 116 McLeod, above n 113, 7.

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While Sahlins’ classic model demonstrates basic variations in leadership types in the

Pacific, it has been criticised as an over-simplification.117 For example, while Solomon

Islands was primarily characterised by ‘big-man’ systems, there were also hereditary

systems, and systems where status and hereditary title coexisted.118 Today, the term

‘chief’ is used to refer to many different types of local leaders in Solomon Islands.119

Regardless of the type of traditional leadership that existed in Pacific Island societies, as

explained in the next sections, all customary legal systems were substantially changed by

outside contact.

2.3.3 Colonisation and independence

During the 19th century, some Polynesian leaders developed laws that applied across all

or most of the country, to expand their control over that area.120 However, in most parts

of the Pacific no laws applied at the national scale until the islands fell under the control

of outside nations. This began in the late 1800s, and by 1900 all Pacific Islands were

under some form of European or American control. Following colonisation, new laws

were enacted by the legislature of the controlling country or that of the island colony,

imposing a new form of governance on Pacific Islanders.121

While the colonising nations imposed new systems of law, they had limited resources to

govern their colonies, so to maintain social control they allowed and/or encouraged

customary legal systems to continue.122 Initially, customary and ‘formal’ legal systems

operated independently, except in disputes about customary land where colonial courts

were authorised to apply custom.123 However, over time, customary law was given a

greater role within the formal system.124

117 See, eg, McLeod, above n 113, 4; B Douglas, ‘Rank, Power, Authority; A Reassessment of Traditional Leadership in South

Pacific Societies’ (1979) 14 Journal of Pacific History 2; Christophe Sand, ‘Melanesian Tribes vs Polynesian Chiefdoms: Recent Archaeological Assessment of a Classic Model of Socio-Political Types in Oceania’ (2002) 41(2) Asian Perspectives 284.

118 Roger M Keesing, ‘Killers, Big Men, and Priests on Malaita: Reflections on a Melanesian Troika System’ (1985) 24(4) Ethnology 237.

119 Geoffrey White, Indigenous Governance in Melanesia, State, Society and Governance in Melanesia Discussion Paper (The Australian National University, 2007).

120 Corrin and Paterson, above n 106, 2. 121 Ibid 2-3. 122 Wesley-Smith, above n 83; Corrin, above n 83, 309-310. 123 Corrin Care and Zorn, ‘Legislating for the Application of Customary Law’, above n 101, 145. 124 Ibid. For example, in the British Solomon Islands Protectorate, native courts were established and authorised to apply native

customs: Native Courts Ordinance 1942 s 10.

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When the Pacific Island States achieved independence,125 the governments of the new

States reflected those of the colonising nations. For example, when Solomon Islands

obtained independence from Great Britain in 1978 it adopted the Westminster

Parliamentary system, with a unicameral Parliament and the British monarch as the head

of state.126 In some States, traditional leaders were given a formal role within the

government.127 This has not occurred in Solomon Islands so customary governance

bodies there have no legislative backing.128 Consequently, the strength of such bodies

(including their ability to enforce customs relating to WH protection) is highly dependent

on their legitimacy within the relevant local communities.

As well as the governance structures of the controlling nations, introduced laws that were

in force before independence were retained, to ‘fill the gap’ until the Pacific Island

legislatures amended or replaced them.129 Solomon Islands retained laws of the United

Kingdom as in force on 1 January 1961, and the rules of common law and equity.130

While independence was not used by Pacific Islanders to revert back to their customary

systems of law and governance, it did provide an opportunity to formalise and strengthen

the position of custom within the State system. The Constitutions and legislation of all

Pacific Island States except Tonga, now recognise customary law as a source of law either

generally or in the determination of certain disputes.131 In Solomon Islands, customary

law is recognised as a valid source of law, to the extent that it is not inconsistent with any

Act of Parliament or certain other written laws.132 Although complex issues remain

regarding the application of customary law by State institutions, its formal recognition in

Constitutions and legislation has given it status in modern Pacific Island States.133 It also

continues to be applied independently of the State systems by customary leaders, and

125 Some Pacific Islands are still under the rule of other nations. For example, American Samoa, New Caledonia and French

Polynesia. However, such places do not fall within the scope of this research: see 1.3. 126 Solomon Islands Independence Order 1978, sch (‘Constitution of Solomon Islands’) s 1(2), 46. 127 McLeod, above n 113, 8-11; Richard Scaglion, ‘Law’ in Moshe Rapaport (ed), The Pacific Islands: Environment and Society

(University of Hawai’i Press, 2013) 202, 205-207. For example, Vanuatu has a National Council of Chiefs known as Malfatu Mauri (Constitution of the Republic of Vanuatu ch 5).

128 In the lead up to Solomon Islands’ independence, the idea that a Council of Elders (comprising an elected group of chiefs) would constitute an upper house was discussed. However, the idea was ultimately not accepted. See Clive Moore, Decolonising the Solomon Islands: British Theory and Melanesian Practice, Working Paper 8 (Alfred Deakin Research Institute, Deakin University, 2010) 17-18. The only role of chiefs recognised under Solomon Islands’ State legislation is in the resolution of disputes over rights to customary land (Local Courts Act (Cap. 19) s 12(1)).

129 See generally, Corrin and Paterson, above n 106, 16-19. 130 Constitution of Solomon Islands s 3. 131 For detailed explanation of the extent to which State laws provide for the recognition of customary law in the Pacific Island

countries, see Corrin and Paterson, above n 106, 41-51. 132 Constitution of Solomon Islands sch 3, para 3. 133 Corrin Care and Zorn, ‘Legislating for the Application of Customary Law’, above n 101, 147.

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indeed it is the most relevant form of law for many Pacific Islanders.134 Consequently,

although legally custom is only valid to the extent that it is consistent with State

legislation,135 it is somewhat of a fallacy to consider State law as being at the apex of the

hierarchy of laws.

As explained in the next section, while customary legal systems remain relevant to many

Pacific Islanders, contemporary systems rarely reflect those that existed before European

contact.

2.3.4 Contemporary ‘customary’ legal systems

Customary legal systems are often erroneously interpreted as being the systems that

existed in the pre-contact period.136 That interpretation fails to consider the profound

changes to Pacific Island societies and legal systems caused by European and American

contact with the islands.137

Early impacts on traditional societies included the introduction of foreign diseases138 and

the movement of men away from their communities to work on plantations,139 both of

which caused substantial population losses. Missionaries were another early influence,

through prohibiting some traditional practices,140 and moving communities to larger

villages, which changed leadership structures.141 In Solomon Islands, missionaries also

changed customary legal systems by installing local leaders and introducing systems of

punishment and reconciliation.142 In some places (including Solomon Islands) customary

134 Klingelhofer and Robinson above n, 82, 10; Corrin Care and Zorn, ‘Legislating for the Application of Customary Law’, above

n 101, 148; Corrin Care, above n 188, 35; Forsyth, above n 75, 251; Allen et al, above n 90, xi, 34; Hviding, above n 101, 266; Jennifer, Corrin, ‘Moving Beyond the Hierarchical Approach to Legal Pluralism in the South Pacific’ (2009) 59 Journal of Legal Pluralism and Unofficial Law 29, 31; Matthew Zurstrassen, Customary Dispute Resolution Research Project: Final Report to the Regional PJDP Meetings in Samoa in March 2012, Pacific Judicial Development Programme (2012) 3.

135 See, eg, Constitution of Solomon Islands sch 3, para 3. For analysis of the status of customary laws pursuant to the Constitutions of Pacific Island States see Katrina Cuskelly, Customs and Constitutions: State Recognition of Customary Law Around the World (IUCN, 2011) 18-21.

136 Allen et al, above n 90, 9. 137 See, eg, Smith, above n 9, 25-27; Sand, above n 117, 291; Corrin Care and Zorn, ‘Legislating Pluralism’, above n 101, 51;

Forsyth, above n 92, 429. 138 See, eg, Smith, above n 9, 26; Sand, above n 117, 291. 139 See, eg, Forsyth, above n 75, 61; Bennett, Judith, Roots of Conflict in Solomon Islands - Though Much is Taken, Much Abides:

Legacies of Tradition and Colonialism, State, Society and Governance in Melanesia Discussion Paper (The Australian National University, 2002) 3.

140 See, eg, Michael Goddard, Justice Delivered Locally, Solomon Islands, Literature Review (World Bank, 2010) 8, 29; Erika J Techera, 'Samoa: Law, Custom and Conservation' (2006) 10 New Zealand Journal of Environmental Law 361, 363.

141 See, eg, Corrin Care and Zorn, ‘Legislating Pluralism’, above n 101, 53-54. 142 Goddard, above n 140, 27, 29.

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beliefs and practices were influenced by their integration with Christianity so there is now

significant overlap between customary and local Christian rules and governance.143

Customary legal systems were influenced by the introduction of new colonial rules, some

of which limited the jurisdiction of customary laws.144 Colonisation also introduced a new

system of law that people could access if they were not satisfied with the customary

system, effectively demoting custom within the legal hierarchy.145 Pacific Islanders

themselves also changed customary laws, often modelling them on formal laws,146

particularly when customary laws were being applied as part of the State system.147

Colonisation also affected traditional governance structures, although the impact varied

significantly throughout the region. As colonisers found the centralised, unified

governance structures of Polynesia easier to work with than the more disparate

governance arrangements in Melanesia, they often sought to adapt the latter to meet their

needs. In Vanuatu for example, except in a few places where chiefs already existed, the

British introduced the concept of ‘chiefs’ to help them negotiate with the natives,148 and

now chiefs are central to ‘customary’ governance systems in that country.149

The modern notion of ‘chiefs’ is also a product of colonisation and its aftermath in

Solomon Islands. The pacification of the Solomon Islander population by the protectorate

government (including through the suppression of head-hunting and the slave trade) had

destroyed the source of wealth of many big-men, thus undermining their power base.150

The protectorate government also affected traditional leadership by appointing some

Solomon Islander men as leaders, many of whom were later given prominent roles in

native tribunals, further elevating their status.151 However, the population was divided as

to the legitimacy of these leaders.152 In the 1940s and 1950s, during protests against

colonial rule, Solomon Islanders themselves led efforts to install invented forms of

143 White, above n 119, 4; Allen et al, above n 90, 65; Anne M Brown, ‘Custom and Identity: Reflections on and Representations

of Violence in Melanesia’ in Nikki Slocum-Bradley (ed), Promoting Conflict or Peace through Identity (Ashgate, 2008) 183, 190.

144 Corrin Care and Zorn, ‘Legislating Pluralism’, above n 101, 51. 145 Ibid. 146 Ibid. 147 Jean G Zorn, ‘Customary Law in the Papua New Guinea Village Courts’ (1990) 2(2) The Contemporary Pacific 279, 306. 148 Lissant Bolton, ‘Chief Willie Bongmatur Maldo and the Role of Chiefs in Vanuatu’ (1998) 33 Journal of Pacific History 179,

180. 149 Forsyth, above n 92, 430. 150 Judith Bennett, Wealth of the Solomons: A History of a Pacific Archipelago, 1800-1978 (University of Hawaii Press, 1988)

112-114. 151 Allen et al, above n 90, 8-9. 152 Ibid.

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Indigenous governance, which ultimately led to the development of the universal notion

of ‘chiefs’ in the country.153 As such, it has been said that in Solomon Islands:

The dispute-management and governance systems and processes established at… [the time of colonisation] continue to have significant repercussions in the way in which justice and governance are presently observed and practiced at the local level.154

Contemporary ‘customary’ legal systems are therefore the product of several influences

that have shaped both norms and governance institutions. These systems continue to play

a significant role in most parts of the Pacific,155 regardless of whether they are truly

traditional or not.156 Their contemporary relevance does however vary between and

within countries.157 They also continue to change and adapt, influenced by forces such as

Western education, the cash economy, globalisation, migration, and inter-marriage,

which in some areas is causing them to weaken.158 Respect for some traditional leaders is

also diminishing, leading to a breakdown in customary governance.159 As will be explored

later in relation to East Rennell, the contemporary relevance of a customary legal system

influences the effectiveness of customary protection of WH (see 6.3).

2.3.5 Customary land tenure

Land is fundamental to the lives and livelihoods of many Pacific Islanders. Most still have

access to their customary land, which forms the basis of islander communities.160 Land in

the Pacific has therefore been described as a ‘basic element of human security in the

region’.161 As explained below, rights to customary land are principally governed through

the applicable customary tenure system, but State laws are also relevant.

153 Ibid. 154 Ibid 7. 155 See above n 134. 156 White, above n 119, 2. 157 Zurstrassen, above n 134, 3. 158 See, eg, Brown, above n 143, 190; Corrin, above n 101, 147. 159 See, eg, Joeli Veitayaki et al ‘On Cultural Factors and Marine Managed Areas in Fiji’ in Jolie Liston, Geoffrey Clark and

Dwight Alexander (eds), Pacific Island Heritage: Archaeology, Identity and Community (ANU E Press, 2011) 37, 38; Shankar Aswani, ‘Customary Sea Tenure in Oceania as a Case of Rights-Based Fishery Management: Does it Work?’ (2005) 15 Reviews in Fish Biology and Fisheries 285, 304; Pepe Clarke and Stacy D Jupiter, ‘Law, Custom and Community-Based Natural Resource Management in Kubulau District (Fiji)’ (2010) 37(1) Environmental Conservation 98, 104; Marjo Vierros et al, Traditional Marine Management Areas of the Pacific in the Context of National and International Law and Policy (United Nations University, 2010) 7; Simon Foale et al ‘Tenure and Taboos: Origins and Implications for Fisheries in the Pacific’ (2011) 12 Fish and Fisheries 357, 364; Jan McDonald, Marine Resource Management and Conservation in Solomon Islands: Roles, Responsibilities and Opportunities (Griffith Law School, 2010) 2.

160 Jim Fingleton, Pacific 2020 Background Paper: Land (Commonwealth of Australia, 2005) 5. 161 Brown, above n 143, 191.

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Soon after outsiders made contact with the islands, alienation of customary land began in

most Pacific Island States162 (for example, to missionaries, traders and planters).163 Once

the islands became colonies, most colonial administrators enacted laws to restrict

alienation on the grounds that it might remove the basis of subsistence for the Indigenous

populations.164 Some States still have laws restricting alienation,165 and the proportion of

land under customary tenure in the region remains high (see Table 3). Nearshore marine

areas in some States may also be customarily owned.166 Therefore, most heritage sites in

the Pacific (whether they be terrestrial or marine) will include areas under customary

ownership.167 In Solomon Islands, alienation was permitted until 1914,168 so only 87% of

land there is customary land.169

Table 3: Distribution of land by system of tenure170

Public171 Freehold172 Customary Cook Islands Some Little 95 Fiji 4 8 88 Niue 1.5 0 98.5 PNG 2.5 0.5 97 Samoa 15 4 81 Solomon Islands 8 5 87 Tokelau 1 1 98 Tonga 100 0 0 Tuvalu 5 <0.1 95 Vanuatu 2 0 98

162 See, eg, Peter Larmour, ‘Sharing the Benefits: Customary Landowners and Natural Resource Projects in Melanesia’ (1989)

36 Pacific Viewpoint 56, 57. 163 Sue Farran, ‘Navigating Between Traditional Land Tenure and Introduced Land Laws in Pacific Island States’ (2011) 64

Journal of Legal Pluralism and Unofficial Law 65, 67. 164 Corrin and Paterson, above n 106, 285. For example, in the British protectorate of Solomon Islands, the grant of perpetual

estate to foreigners was initially permitted, but later prohibited under Land Regulation 1914 (King’s Regulation No. 3) s 3. 165 For example, in Solomon Islands, only a Solomon Islander can hold an interest in customary land (Land and Titles Act (Cap.

133) (Solomon Islands) s 241(1)). 166 Ron Crocombe, ‘Tenure’ in Moshe Rapaport (ed), The Pacific Islands: Environment and Society (University of Hawai’i Press,

2013) 192, 193. In Solomon Islands, there are conflicting High Court decisions concerning customary ownership of land below the high-water mark. In Allardyce Lumber Company Ltd v Laore [1990] SBHC 46, the Court ruled that the foreshore could be customary land but the seabed could not. In Combined Fera Group v Attorney General [1997] SBHC 55 the Court found that the seabed could also potentially be under customary tenure. For further discussion see Stephanie Price et al, Environmental Law in Solomon Islands (Public Solicitor’s Office, 2015) 31-32.

167 Of the eight World Heritage Sites in the Pacific Island States, seven are either partly or entirely comprised of customary land (Nan Madol: Ceremonial Centre of Eastern Micronesia, Levuka Historical Port Town, Bikini Atoll Nuclear Site, Rock Islands Southern Lagoon, Kuk Early Agricultural Site, East Rennell and Chief Roi Mata’s Domain). See Table 2 in 1.2.3.

168 Alienation was prohibited by Land Regulation 1914 (King’s Regulation No. 3) (UK). 169 AusAid, Making Land Work: Reconciling Customary Land and Development in the Pacific (Australian Agency for

International Development, vol 1, 2008) 4. 170 Data from AusAid, Making Land Work: Reconciling Customary Land and Development in the Pacific (Australian Agency for

International Development, vol 1, 2008) 4. 171 Includes Crown land and land owned by provincial and local governments. 172 Includes land that is not strictly freehold, but has similar characteristics, such as ‘perpetual estates’ which exist in Solomon

Islands (Land and Titles Act (Cap. 133) s 112(1)).

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Except in Tonga (which has no customary land), in the Pacific Island States rights to

customary land are determined according to the applicable customary laws.173 These laws

are often underpinned by closely guarded local knowledge of genealogies and histories,174

and oral rules and histories that can be easily confused and manipulated by people seeking

to rely on the laws to exercise their rights or enforce them against others.175 As a result,

local people sometimes hold different opinions concerning applicable customary rules.

Consequently, in Solomon Islands for example, disputes over rights to customary land

are the most common form of dispute,176 which can hinder heritage conservation

efforts.177

Customary land tenure laws vary significantly throughout the Pacific, because they were

developed and adapted by settlers to suit their island environments, and because of the

diverse impacts of colonisation.178 This variation makes it difficult to make

generalisations about such laws. However, some features are common to many places:

1. Much literature (including this thesis) and legislation refers to customary

‘ownership’ and customary ‘owners’. However, those terms over-simplify Pacific

land tenure. Under customary laws, people generally do not ‘own’ land in the

Western sense of that word, but rather have rights to it vis-à-vis other people.179

Rights and obligations are overlapping, as rights of individuals or small groups

may be nested in rights of broader groups.180 Thus, customary tenure is better

thought of as a complex and flexible system of rights and obligations, rather than

a system of ownership.181

2. Customary land is commonly owned by a group, but the size of landowning unit

varies.182 For example, in Solomon Islands the landowning unit is often quite

173 Corrin and Paterson, above n 106. In Solomon Islands for example, this is provided for in the Land and Titles Act (Cap. 133)

s 239(1). 174 White, above n 119, 10. 175 John McKinnon, ‘Resource Management under Traditional Tenure: The Political Ecology of a Contemporary Problem, New

Georgia Islands, Solomon Islands’ (1993) 14(1) South Pacific Study 95, 95. 176 Allen et al, above n 90, 18. 177 For example, in Solomon Islands, the Minister for Environment cannot declare an area to be a ‘protected area’ under the

Protected Areas Act 2010 if there is a dispute over the ownership of the land (Protected Area Regulations 2012 reg 14(3)). See chapter 8 for analysis of this legislation.

178 Smith, above n 9, 24, 41. 179 Jean Guiart, ‘Land Tenure and Hierarchies in Eastern Melanesia’ (1996) 19(1) Pacific Studies 1, 7; Crocombe, above n 166,

192. 180 Crocombe, above n 166, 192. 181 John Fingleton (ed), Privatising Land in the Pacific: A Defence of Customary Tenures, Discussion paper 80 (The Australia

Institute, 2005) ix. 182 Corrin and Paterson, above n 106, 274-275.

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large, like a line, clan or tribe.183 In other countries, the unit may be a smaller such

as a family or extended family,184 or even an individual in some places.185 On

Rennell, where people are of Polynesian descent, land is held individually by male

members of the lineage,186 which differs from other parts of Solomon Islands

(discussed further at 6.3.1).

3. Some people within a landowning group may possess stronger claims than others.

For example, the rights of males are generally superior to females. People who

have worked the land, stayed in the vicinity and/or contributed to the community

may also have stronger rights.187 In addition, although rights to land are generally

held by a group, group members do not necessarily have equal say over what

happens on their land. Key decisions are often made by the senior members (for

example, the chiefs).188

4. Customary land is usually acquired by inheritance, either through the matrilineal

or patrilineal line.189 Again, the use of the term ‘inheritance’ here varies from the

Western understanding of that term. In the Pacific, land rights arise at birth but

cease upon death.190

5. In some places rights to land are flexible.191 When the laws were developed,

community life was often unsettled, making it difficult for fixed land laws to

emerge.192 In addition, land boundaries were commonly natural features, which

could be shifted by nature or people.193 Tenure laws were often adjusted to take

into account new circumstances, and the need to redistribute land.194

183 Ibid 275. 184 Ibid. 185 Ibid 269, 275. 186 Samuel H Elbert and Torben Monberg, From the Two Canoes: Oral Traditions of Rennell and Bellona Islands (Danish

National Museum and University of Hawaii Press, 1965) 10. 187 Ron Crocombe, ‘Overview’ in Customary Land Tenure and Sustainable Development: Complementary or Conflict (South

Pacific Commission, 1995) 5, 10-11; Crocombe, above n 166, 192. 188 Fingleton, above n 160, 7. 189 Crocombe, ‘Overview’, above n 187, 10. 190 Fingleton, above n 160, 7. 191 See, eg, Donald Denoon, ‘Pacific Edens? Myths and Realities of Primitive Affluence’ in Donald Denoon, Malama Meleisea,

Stewart Firth, Jocelyn Linnekin and Karen Nero (eds), The Cambridge History of Pacific Islanders (Cambridge University Press, 2008) 80, 94.

192 Corrin and Paterson, above n 106, 289. 193 Ibid. 194 Fingleton, above n 160, 8.

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6. Like other customary laws, in many places laws regulating land tenure have

changed significantly since pre-colonial times.195

In addition to customary laws, State laws regulate the ownership of and dealings in

customary land. In Solomon Islands, these laws cover issues such as land acquisition,196

land disputes,197 extractive industries,198 and conservation.199 Understanding the

interactions between State laws and rules governing customary land tenure is critical to

an assessment of WH protection. As this research will show, in Solomon Islands some

challenges associated with implementing relevant legislation stem from the laws’ failure

to appropriately accommodate the variety of customary land tenure rules that exist in that

country (see chapters 7 and 8).

2.4 Protection of World Heritage through Pacific Island legal systems

2.4.1 World Heritage protection under State legal systems

The governments of the Pacific Island States have comprehensive law-making powers,

which could be exercised to enact laws for the protection of heritage. For example, the

National Parliament of Solomon Islands has the power to make ‘laws for the peace order

and good government’ of the country.200 Some Pacific Island States also have sub-

national levels of government, whose legislative powers are more limited but may

encompass heritage protection. For example, Solomon Islands’ nine provincial

assemblies201 have the power to enact ordinances dealing with issues such as ‘cultural and

environmental matters’, ‘land and land use’ and ‘rivers and water’.202 Furthermore, under

the Solomon Islands Constitution, national and provincial legislation overrides customary

law to the extent of any inconsistency,203 so State laws could be enacted to protect a

heritage site notwithstanding its customary ownership. However, as explained below,

195 See, eg, Denoon, above n 191, 90. 196 For example, the Land and Titles Act (Cap. 133). 197 For example, the Land and Titles Act (Cap. 133); Local Courts Act (Cap. 19). 198 For example, the Forest Resources and Timber Utilisation Act (Cap. 40); Mines and Minerals Act (Cap. 42); Environment

Act 1998. 199 For example, the Protected Areas Act 2010. 200 Constitution of Solomon Islands s 59(1). 201 The nine provinces of Solomon Islands are Central, Choiseul, Guadalcanal, Isabel, Makira-Ulawa, Malaita, Rennell-Bellona,

Temotu and Western Province: see Figure 2. 202 Provincial Government Act 1997 ss 31, 33, sch 3. 203 Constitution of Solomon Islands sch 3 para 3.

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political, economic and social considerations affect the willingness and ability of Pacific

Island governments to do so.

(A) Development and heritage protection in the Pacific Islands

Heritage protection is not a high priority for Pacific Island governments.204 As an officer

of the Ministry of Environment commented when interviewed for this research, States in

the region are ‘flooded with international obligations’,205 so the Convention is just one of

the treaties governments are attempting to comply with. In addition, they have limited

resources to dedicate to heritage protection. Per capita economic growth rates are

generally very low,206 as economic development has been hampered by the islands’ small

size, limited resources, geographic dispersion and isolation from markets.207 Solomon

Islands, Kiribati, Tuvalu and Vanuatu have particularly weak economies and are

categorised as Least Developed Countries.208 Consequently, economic and social

development is (understandably) a higher priority for many Pacific Island States.209 This

is reflected in the budgets of the Ministries charged with implementing the Convention.

A 2012 study found that no such Ministry had an adequate budget for heritage

protection,210 presenting a significant challenge for the conservation of Pacific WH.

The fact that some Pacific Island governments are economically dependent on activities

that can harm heritage is a further challenge. For example, in Solomon Islands, substantial

government revenue is earned from the logging industry,211 which has caused widespread

204 See, eg, Smith and Turk, above n 26, 24; Chape, above n 10, 44; Anita Smith, ‘The World Heritage Pacific 2009 Programme’

in Anita Smith (ed), World Heritage in a Sea of Islands: Pacific 2009 Programme, World Heritage Papers 34 (UNESCO, 2012) 2, 9; Tim Denham, ‘Building Institutional and Community Capacity for World Heritage in Papua New Guinea: The Kuk Early Agricultural Site and Beyond’ in Anita Smith (ed), World Heritage in a Sea of Islands: Pacific 2009 Programme, World Heritage Papers 34 (UNESCO, 2012) 98, 101; Salamat Ali Tabbasum, ‘Developing the Solomon Islands Tentative List’ in in Anita Smith (ed), World Heritage in a Sea of Islands: Pacific 2009 Programme, World Heritage Papers 34 (UNESCO, 2012) 34, 34.

205 Interview with a conservation officer in the Ministry of Environment (Honiara, 2 August 2013). 206 See, eg, AusAid, Pacific 2020: Challenges and Opportunities for Growth (Commonwealth of Australia, 2006) 1, 19; Storey

and Abbott, above n 71, 417; Geoff Bertram, ‘Pacific Island Economies’ in Moshe Rapaport (ed), The Pacific Islands: Environment and Society (University of Hawai’i, 2013) 325. For example, Solomon Islands’ economy grew by 2.0% in 2014 (Central Bank of Solomon Islands, Annual Report 2014 (Solomon Islands Government, 2015) 1) and 2.9% in 2015 (Central Bank of Solomon Islands, Annual Report 2015 (Solomon Islands Government, 2016) 1.

207 See, eg, Agenda 21, Report of the UNCED, I, UN Doc. A/CONF.151/26/Rev.1 (1992) para 17.123. 208 United Nations Committee for Development Policy, List of Least Developed Countries (as of May 2016) (2016)

<http://www.un.org/en/development/desa/policy/cdp/ldc/ldc_list.pdf>. ‘Least Developed Countries’ are those that meet certain low-income, human resource weakness and economic vulnerability criterion specified by the Economic and Social Council of the United Nations.

209 See, eg, Herr, above n 7, 43; Tabbasum, above n 204, 34; Peter Shelley, ‘Contracting for Conservation in the Central Pacific: An Overview of the Phoenix Islands Protected Area’ (2012) 106 Proceedings of the Annual Meeting (American Society of International Law 511, 514.

210 Final Report on the Results of the Second Cycle of the Periodic Reporting Exercise for Asia and the Pacific, WHC 36th sess, UN Doc WHC-12/36.COM/10A (1 June 2012) 22.

211 See, eg, Gay, Daniel (ed),. Solomon Islands Diagnostic Trade Integration Study 2009 Report (Solomon Islands Government, 2009) 48; Morgan Wairiu, ‘History of the Forestry Industry in Solomon Islands: The Case of Guadalcanal’ (2007) 42(2) Journal of Pacific History 233, 243. See 7.3.2 for further discussion.

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environmental and social damage.212 In the Pacific (as elsewhere) the tension between

heritage protection and economic development can influence the State’s willingness to

implement the Convention (discussed further in 6.5.2 and chapter 7).

(B) Governance issues and the (ir)relevance of State legal systems

Many Pacific Island States are plagued by governance issues, which are barriers to

heritage protection.213 These issues contribute to the lack of relevance and legitimacy

afforded to the national level of governance by many Pacific Islanders, which limits the

effectiveness of the State legal system.

Several factors contribute to these governance problems, beginning with the colonisation

process. The boundaries of most Pacific Island States were determined by colonial powers

and not based on cultural or geographical logic;214 so many States had little sense of

national unity before colonisation. This feature is most prevalent in Melanesia, where

islanders did not have a long history of contact and cooperation,215 but less significant in

areas with greater ethnic, linguistic and cultural homogeneity. In some States including

Solomon Islands the independence process did not engender nationalist sentiments, as it

was initiated from the top-down rather than from a struggle by the people.216 This lack of

national unity has made it challenging for many governments to establish a strong

presence among their populations, particularly in rural areas. Post-independence State-

building in some places has been further impeded by political instability, weak

parliaments and executive governments, and corruption,217 and exacerbated by the lack

of many checks and balances found in countries with larger populations.218

212 See, eg, Pacific Horizon Consultancy Group, Solomon Islands State of Environment Report (Solomon Islands Government,

2008) 81. 213 Pacific World Heritage Action Plan 2016 – 2020 (2016) 3. 214 Clive Moore, ‘Indigenous Participation in Constitutional Development’ (2013) 48(2) The Journal of Pacific History 162, 163;

Sinclair Dinnen, ‘State-Building in a Post-Colonial Society: The Case of Solomon Islands’ (2008) 9 Chicago Journal of International Law 51, 53.

215 Stephen Levine, 'The Experience of Sovereignty in the Pacific: Island States and Political Autonomy in the Twenty-First Century’ (2012) 50(4) Commonwealth & Comparative Politics 439, 444.

216 Fischer, above n 34, 249; Sinclair Dinnen, ‘The Solomon Islands Intervention and the Instabilities of the Post-Colonial State’ (2008) 20(3) Global Change, Peace and Security (formerly Pacific Review: Peace, Security and Global Change) 338, 347. An exception to this is Samoa, where from the 1930s there was an indigenous independence movement: see, eg, Crocombe, above n 31, 438.

217 Cedric Saldanha, Pacific 2020 Background Paper: Political Governance (Commonwealth of Australia, 2005) 4. 218 Ibid; Ron Duncan, ‘An Overview of Decentralisation and Local Governance Structures in the Pacific Region’ (Paper presented

at the Pacific Regional Symposium ‘Making Local Governance Work’, Suva, Fiji, 4 – 8 December 2004) 10.

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Melanesian national governments have been particularly unstable. Reflecting the ‘big-

man’ style of leadership characteristic of many traditional societies, politicians in

Melanesia often see their role as rewarding the people who voted for them (generally a

sub-group of their electorate) rather than implementing policies in the broader public

interest219 (such as protecting WH). Instead of being members of well-established

political parties, these politicians tend to form loose coalitions, with affiliations frequently

changing, contributing to political instability.220 Governance issues contributed to the

conflicts experienced in some States, such as the secessionist struggle in Bougainville,

coups in Fiji, and the ethnic tensions in Solomon Islands.221

These issues exacerbate the lack of relevance and legitimacy afforded to the national level

of governance and law-making by many Pacific Islanders, particularly those living in

rural areas (discussed at 2.3.4). In the ethnically diverse Melanesia, people’s main

association rests with their clan, tribe and island, rather than with their State,222 and the

idea of a national government is often viewed as foreign.223 While this characteristic is

less evident in Polynesia, some in that region still view their national government with

suspicion.224

In Solomon Islands, the relevance of the national government is further diminished by the

fact that most people do not rely on the State for their day to day needs. They live

predominantly subsistence lifestyles, and social services (where they exist) are often

provided by non-State entitles such as churches.225 Disenchantment with the government

has been fuelled by limited opportunities for rural development, decreasing provision of

government services and the perceived greed of politicians, many of whom who have

benefited significantly from the logging industry.226 In addition, many people are not

aware of or do not understand State laws, because they are rarely translated into local

languages or explained to the public.227 Thus, the State legal system in Solomon Islands

219 Reilly, above n 104, 482-483; McLeod, above n 113, 8. 220 Dinnen, above n 214, 57. 221 Solomon Islands’ ethnic tensions are explained briefly in 5.4. 222 Reilly, above n 104, 482; Bennett, above n 139, 14; Ian Frazer, ‘The Struggle for Control of Solomon Island Forests’ (1997)

9(1) Contemporary Pacific 39, 44. 223 Bennett, above n 139, 14. 224 Wesley-Smith, above n 83, 151. 225 Jane Turnbull, ‘Solomon Islands: Blending Traditional Power and Modern Structures in the State’ (2002) 22 Public

Administration and Development 191, 197. 226 Dinnen, above n 214, 58. 227 Klingelhofer and Robinson, above n 82, 9.

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is of marginal significance to much of the population,228 which means many have little

impetus to comply with State heritage protection laws.

(C) The (lack of) implementation and enforcement of State laws

Pacific Island States have historically poor records of compliance with and enforcement

of some State laws, including heritage protection legislation.229 In some cases, this is

because the legislation is based on a ‘command and control’ approach to regulation,

which is a poor fit in the Pacific.230 Furthermore, government ministries charged with

enforcing the legislation are under-resourced, impeding their ability to carry out their

statutory duties.231 This challenge is exacerbated by the geography of some States.

Solomon Islands, for example, comprises almost 1,000 islands stretching across 1,450km

of ocean. Enforcement of State laws in isolated places requires substantial human and

financial resources, which are often beyond the capacity of the government. A further

challenge is the highly ‘Honiara-centric’ nature of Solomon Islands’ State legal system,

with most courts and the bulk of legal services being located in the nation’s capital.232

This makes it extremely difficult for people living on the outer islands to access the court

system, to enforce their rights under State legislation.233

A lack of implementation and enforcement also hampers the effectiveness of many

provincial ordinances. Solomon Islands’ provincial governments could play an important

role in heritage protection, including through monitoring and enforcing compliance with

national and provincial laws. However, while some provinces have enacted relevant

ordinances, few have been effectively implemented.234

228 Allen et al, above n 90, 45. 229 Laurence Cordonnery, ‘Environmental Law Issues in the South Pacific and the Quest for Sustainable Development and Good

Governance’ in Anita Jowitt and Tess Newton Cain (eds), Passage of Change: Law, Society and Governance in the Pacific (ANU Press, 2010) 233, 238; Final Report on the Results of the Second Cycle of the Periodic Reporting Exercise for Asia and the Pacific, WHC 36th sess, UN Doc WHC-12/36.COM/10A (1 June 2012) 43; Ben Boer and Pepe Clarke, Legal Frameworks for Ecosystem-Based Adaptation to Climate Change in the Pacific Islands (SPREP, 2012) 25. See generally, Price et al, above n 166.

230 Govan, et al above n 6, 17. 231 See above n 204. 232 Allen et al, above n 90, 44-45. 233 A promising development in this regard is the recent publication of the Solomon Islands Environmental Crime Manual, which

is aimed to assist members of the Royal Solomon Islands Police Force to identify and enforce environmental crimes, including those committed under logging and mining laws, the Environment Act 1998 and the Protected Areas Act 2010: See Katrina Moore, Solomon Islands Environmental Crime Manual (Solomon Islands Government, 2015). In time, this may lead to some improvement in the enforcement of such legislation.

234 Phillip Iro Tagini, The Search for King Solomon’s Gold: An Examination of the Policy and Regulatory Framework for Mining in Solomon Islands (PhD Thesis, The Australian National University, 2007) 391.

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Due to the challenges referred to above, in States such as Solomon Islands, heritage

protection is unlikely to be achieved in a purely centralised manner. The potential for

customary legal systems to contribute to WH protection must therefore be considered.

2.4.2 World Heritage protection under customary legal systems

Pacific Islanders have repeatedly stressed that the operation of the Convention in the

region ‘can only be effected through recognition of local customary and other forms of

tenure of land and sea, and traditional custodianship of cultural heritage.’235 In some cases

this is because customary systems form an integral part of the heritage value of the place

(see 2.2.1(B)). Customary laws can also contribute to the protection of other forms of

heritage, including the natural environment.

Over time, Pacific Islanders developed management practices to regulate access to and

use of land and resources.236 In some parts of Solomon Islands for example, customary

practices restricted access to important sites, regulated the consumption of certain species,

and limited some peoples’ harvesting rights.237 Around the Pacific, practices such as this

coevolved with customary laws and tenure systems, and hence all are integrated.238

Pacific Islanders also developed processes for making decisions and resolving disputes.

The motivation behind Pacific Islanders’ development of customs governing rights to

land and resources varied. A much cited paper by Johannes noted that Pacific Islanders

understood that their vital fisheries resources could be depleted, so they developed

management techniques to guard against this.239 However, the idea that all Indigenous

people lived in harmony with nature is no longer well accepted.240 For example, a study

235 Identification of World Heritage Properties in the Pacific: First World Heritage Global Strategy Meeting for the Pacific

Islands Region (Suva, Fiji, 15 – 18 July 1997) para 7. See also Presentation of the World Heritage Programme for the Pacific (Appeal to the World Heritage Committee from the Pacific Island State Parties) WHC 31st sess, UN Doc WHC-07/31.COM/11C (10 May 2007) annex I, para 13.

236 See, eg, Smith, above n 9, 60; Ballard and Wilson, above n 26, 130; Hugh Govan, ‘Achieving the Potential of Locally Managed Marine Areas in the South Pacific’ (2009) 25 SPC Traditional Marine Resource Management and Knowledge Information Bulletin 16, 17; L M Scherl and A J O’Keefe, ‘Capacity Development for Protected and Other Conserved Areas in the Pacific Islands Region: Strategy and Action Framework 2015-2020’ (IUCN, 2016) 1.

237 Reuben Sulu, ‘Traditional law and the Environment in the Solomon Islands’ (2004) 17 SPC Traditional Marine Resource Management and Knowledge Information Bulletin 20, 20.

238 Scherl and O’Keefe, above n 236, 1. 239 R E Johannes, ‘Traditional Marine Conservation Methods in Oceania and their Demise’ 9 (1978) Annual Review of Ecology

and Systematics 349, 350. 240 See, eg, Foale et al, above n 159, 365; Crocombe, above n 31, 25; Simon Foale, ‘The Intersection of Scientific and Indigenous

Ecological Knowledge in Coastal Melanesia: Implications for Contemporary Marine Resource Management’ (2006) 58 (187) International Social Science Journal 129, 129; R E Johannes and F R Hickey, Evolution of Village-Based Marine Resource Management in Vanuatu Between 1993 and 2001, Coastal Region and Small Island Papers 15 (UNESCO, 2004) 29; Ruddle, K, E Hviding and R E Johannes, ‘Marine Resources Management in the Context of Customary Tenure’ (1992) 7 Marine Resource Economics 249, 267; Marianne Pederson, Conservation Complexities: Conservationists’ and Local Landowners’

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of customary marine management in Melanesia found that human population densities

there were generally too low to generate the population pressures required to stimulate a

conservation ethic.241 Therefore, the reverence that Pacific Islanders have for nature

cannot be confused with the possession of a conservation ethic.242 While resource

management in some communities was driven by a desire to conserve resources, other

motivations included allocation of resources and customary and religious beliefs.243

The existence of these different motivations has implications for the contemporary role

of customary systems in WH protection, as it cannot be assumed that Indigenous values

are consistent with the conservation of heritage.244 However, even where customary

management was not designed for conservation, it may still provide the basis for good

resource stewardship.245 Thus, the role of customary systems in the protection of natural

heritage places is being increasingly recognised.246

The potential for WH protection under customary legal systems is however limited.

Throughout the Pacific, many systems have been weakened by colonisation and later

influences (see 2.3.4). Customary laws are today less relevant to some young people,

particularly those who have moved from their village and been exposed to other ideas.247

The availability of the State system as an alternative dispute resolution mechanism,248 and

the loss of respect for chiefs and traditional practices and protocols249 have also reduced

the legitimacy of customary legal systems. Thus, customary resource management in

some parts of the Pacific is not strong.250

Different Perceptions of Development and Conservation in Dandaun Province, Papua New Guinea, State, Society and Governance in Melanesia Discussion Paper 7 (Australian National University, 2013) 3.

241 Foale et al, above n 159, 357. 242 McNeill, above n 14, 309. 243 Ruddle, Hiving, Johannes, above n 240, 262. 244 Giraud-Kinley, above n 63, 157; Foale et al, above n 159, 365; Crocombe, ‘Overview’, above n 187; Ruddle, Hviding and

Johannes, above n 240, 267. 245 S Aswani et al, ‘Customary Management as Precautionary and Adaptive Principles for Protecting Coral Reefs in Oceania’

(2007) 26 Coral Reefs 1009, 1010. 246 See, eg, Aswani et al, above n 245; Clark and Jupiter, above n 159; Govan, above n 236; McDonald, above n 159; David

Doulman, ‘Community-Based Fishery Management: Towards Restoration of Traditional Practices in the South Pacific’ (1993) Marine Policy 108; R E Johannes and F R Hickey, Evolution of Village-Based Marine Resource Management in Vanuatu between 1993 and 2001, Coastal Region and Small Island Papers 15, (UNESCO, 2004) 28; J E Cinner and T R McClanahan, ‘Socioeconomic Factors that Lead to Overfishing in Small-Scale Coral Reef Fisheries of Papua New Guinea’ (2006) 33 Environmental Conservation 73.

247 Menzies, above n 102, 10; Corrin, above n 134, 30. 248 Corrin Care and Zorn, ‘Legislating for the Application of Customary Law’, above n 101, 149. 249 Forsyth, above n 75, 114-120; Veitayaki et al, above n 159, 40. 250 See, eg, Foale et al, above n 159, 364; McDonald, above n 159, 2; Govan et al, above n 6, 25; Johannes, above n 239, 356;

Francis R Hickey, ‘Traditional Marine Resource Management in Vanuatu: Acknowledging, Supporting and Strengthening Indigenous Management Systems’ (2006) 20 SPC Traditional Marine Resource Management and Knowledge Information Bulletin 11, 11; Tom Graham and Noah Idechong, ‘Reconciling Customary and Constitutional Law: Managing Marine Resources in Palau, Micronesia’ (1998) 40 Ocean and Coastal Management 143, 146-7; Kenneth Ruddle, ‘The Context of Policy Design for Existing Community-Based Fisheries Management Systems in the Pacific Islands’ (1998) 40 Ocean and Coastal Management 105, 108.

85

Furthermore, customary systems are seldom able to deal with all pressures affecting

heritage places.251 As Crocombe has noted:

No traditional precedents exist for chain saws, bulldozers, hunting rifles, metal traps, power torches, spearguns, scuba gear, filament nets, dynamite, outboard motors or global markets for timber, coral, bird of paradise feathers, sea shells, clams for soup and nautilus shells for tourist mantel pieces.252

Similarly, Ballard and Wilson have said:

Community control, in and of itself, is seldom sufficient as a basis for long-term management under novel conditions that include pressure to sell or lease land, to sign contracts for timber, fisheries or oil-palm production, or to enter into agreements for protected natural or cultural areas.253

Importantly, customary systems often cannot protect a site against activities undertaken

by outsiders,254 or threats arising from beyond the area under the jurisdiction of the

relevant customary governance body. Therefore, even if a site is subject to customary

protection, other measures (including State legislation) will usually be needed to ensure

its long-term conservation.

2.5 Conclusion

Pacific heritage is diverse, encompassing impressive natural landscapes, and sites

associated with the development of island societies or later events of global significance.

While the law alone cannot ensure the protection of these places, it plays an important

role. Pacific Island governments have broad legislative powers, but legal, political,

economic and social issues influence their willingness and ability to develop and

implement heritage protection laws. Such laws must be tailored to the nature of Pacific

heritage sites, the resource capacities of the governments, and the legal and land tenure

systems prevalent in the region.

The growing acceptance of the concept of legal pluralism has given non-State legal

systems increased legitimacy in academic discourse.255 Thus, as Twining has noted, ‘a

conception of law confined to state law…leaves out too many significant phenomena

251 Ballard and Wilson, above n 26, 132, 149; Smith, above n 204, 5; Pepe Clarke and Charles Taylor Gillespie, Legal Mechanisms

for the Establishment and Management of Terrestrial Protected Areas in Fiji (IUCN, 2009) 2. 252 Crocombe, above n 31, 26. 253 Ballard and Wilson, above n 26, 132. 254 Jonathan M Lindsay, Creating Legal Space for Community-Based Management: Principles and Dilemmas (Food and

Agriculture Organisation of the United Nations, 1998) 3; Veitayaki et al, above n 159, 41. 255 Forsyth, above n 75, 44.

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deserving sustained juristic attention’ including customary law.256 In the context of WH,

is clear that customary legal systems, through their relationship with traditional practices

and land tenure, are a key component of the legal framework of Pacific Island States.

However, as this chapter demonstrated, while customary systems can contribute to WH

protection, they have been significantly altered (and often weakened) since colonisation,

and there are limits to the issues that they can deal with.

Legal pluralism requires consideration not just of the existence of multiple legal systems,

but also the relationship between those systems.257 However, as Forsyth has noted, it does

not greatly assist in working out how different systems of law can most effectively relate

to each other.258 There is still a need for greater understanding of how customary and

State legal systems can best operate and interact to support WH protection. This research

therefore makes an important contribution to the literature by exploring these issues in

the Solomon Islands context.

Building upon the foundation laid by this chapter, the next two chapters analyse the

Convention regime in the Pacific context. Chapter 3 considers the scope for Pacific Island

heritage to be recognised as WH, and thus to fall within the ambit of the treaty. Chapter

4 assesses the protection regime established by the Convention and its application in the

Pacific.

256 Twining, above n 98, 114. 257 Merry, above n 73, 873. 258 Forsyth, above n 75, 46.

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Chapter 3: The concept of ‘World Heritage’ and its application to Pacific Island heritage

3.1 Introduction

Chapter 2 introduced the nature of Pacific Island heritage and legal systems, and

identified some key issues concerning the protection of heritage places. This chapter

builds upon that analysis by exploring how Pacific Island heritage ‘fits’ within the concept

of World Heritage (WH). This will be done by analysing literature concerning the history

of the World Heritage Convention1 (the Convention), the Committee’s broadening

interpretation of the notion of ‘outstanding universal value’ (OUV), and the scope for

Pacific Island heritage to meet the requirements for WH listing. Based on that analysis,

this chapter highlights issues relevant to the protection of Pacific sites, which will be

explored further in later chapters.

The Convention does not define the term WH. Instead, sites that fall within the scope of

the treaty are those that meet the definitions of ‘cultural heritage’ and ‘natural heritage’

in Articles 1 and 2 respectively. ‘Cultural heritage’ is defined as monuments and groups

of buildings that have OUV from the point of view of history, art or science; as well as

sites that have OUV from an historical, aesthetic, ethnological or anthropological point

of view.2 ‘Natural heritage’ is defined as natural features, geological and physiographical

formations and natural areas of OUV from the point of view of science, conservation or

aesthetics.3 Therefore, WH is essentially a site that expresses cultural and/or natural

heritage values, and has OUV.

The concept of WH can best be explained by examining the origins of the Convention.

This chapter therefore starts with an exploration of the key developments that contributed

to the development of the Convention, particularly the growing recognition of the

interrelationship between humankind and the environment and the notion of

intergenerational equity (3.2). It explains how the scope of the concept of WH reflects

developments such as these.


1037 UNTS 151 (entered into force 17 December 1975) (‘World Heritage Convention’). 2 Ibid art 1. 3 Ibid art 2.

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The chapter then explores the notion of OUV, which was introduced into the Convention

to restrict the treaty’s scope to sites of global significance (3.3). As will be explained, the

Convention does not define the term OUV, but gives the Committee the power to

prescribe the criteria to be applied when determining whether a site meets that threshold.

While the criteria initially set by the Committee were relatively narrow, emerging views

concerning cultural diversity led to them being broadened. The criteria are now

sufficiently broad to enable the listing of many Pacific heritage places, but impediments

to the nomination of such sites still exist. In addition, the implications of listing sites

which possess markedly different global and local significance warrant further

consideration, including the challenges this presents for the sites’ conservation.

3.2 The concept of ‘World Heritage’ under the World Heritage

Convention

The scope of the concept of WH reflects the era in which the Convention was developed.

The Convention was a product of growing awareness among the international community

of the need for broader international laws to protect cultural and natural places from the

impacts of human activities, as well as increasing recognition of the interrelationship

between people and the environment and the concept of intergenerational equity. The

Convention introduced the umbrella notion of WH to encompass culturally and naturally

significant sites of value to humankind, which must be protected for present and future

generations. This made it the first international agreement to protect ‘heritage’, as well as

the first to cover both cultural and natural places.

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3.2.1 A brief history of the development of the World Heritage Convention4

Laws to protect cultural properties and objects have a long history.5 Their progressive

development cannot be described in a linear or logical fashion6 because each used

different terminology to describe the items or places that fell within its scope, and defined

such terms for the purposes of that instrument alone.7 In general however, the law evolved

from focusing on the physical manifestations of culture (such as objects, individual

monuments and buildings) to the more holistic notion of ‘cultural heritage’.8

Laws for the protection of monuments and art work began to be enacted in Europe in the

15th century, but were initially narrow in scope.9 As cultural monuments and objects have

long been a ‘victim of war’,10 the first international legal principles and rules applying to

such properties emerged through the development of the laws of war and international

humanitarian law.11 The progressive codification of the international laws of war

provided some protections to cultural properties in the event of armed conflicts.12

However, it was the immense destruction of cultural properties during World War II, and

the subsequent establishment of the United Nations Educational, Scientific and Cultural

Organisation (UNESCO) that provided the impetus needed for the first comprehensive

multi-lateral treaty to protect cultural properties.13

The resulting agreement, the Convention for the Protection of Cultural Property during

Armed Conflict 1954,14 affords protection to ‘cultural property’.15 It defines that term to

4 For detailed discussion of the history of the World Heritage Convention see, eg, Sarah M Titchen, On the Construction of

Outstanding Universal Value: UNESCO’s World Heritage Convention (Convention Concerning the Protection of the World Cultural and Natural Heritage, 1972) and the Identification and Assessment of Cultural Places for Inclusion in the World Heritage List (PhD Thesis, The Australian National University, 1995) chs 2, 3; Francesco Francioni (ed), The 1972 World Heritage Convention: A Commentary (Oxford University Press, 2008).

5 Ben Boer and Graeme Wiffen, Heritage Law in Australia (Oxford University Press, 2006) 9. For discussion of the history of such laws see generally Francesco Francioni, ‘A Dynamic Evolution of Concept and Scope: From Cultural Property to Cultural Heritage’ in Yusuf A Abdulqawi (ed), Standard-Setting in UNESCO Volume 1: Normative Action in Education, Science and Culture (Martinus Nijoff and UNESCO Publishing, 2007) 221; David Lowenthal, ‘Natural and Cultural Heritage’ (2005) 11(1) International Journal of Heritage Studies 81; Craig Forrest, International Law and the Protection of Cultural Heritage (Routledge, 2011).

6 Seong-Yong Park, On Intangible Heritage Safeguarding Governance: An Asia-Pacific Context (Cambridge Scholars Publishing, 2013) 9.

7 Lyndel V Prott and P J O’Keefe, Law and the Cultural Heritage – Volume I (Professional Books, 1984) 8. 8 See, eg, Forrest, above n 5, xxi. 9 Prott and O’Keefe, above n 7, 34. 10 Forrest, above n 5, 56. 11 Francioni, above n 5, 223. For detailed discussion of the history of war and cultural heritage, see Forrest, above n 5, ch 3. 12 Guido Carducci, ‘The 1972 World Heritage Convention in the Framework of other UNESCO Conventions on Cultural

Heritage’ in Francesco Francioni (ed), The 1972 World Heritage Convention: A Commentary (Oxford University Press, 2008) 363, 365.

13 Forrest, above n 5, 78. 14 Convention for the Protection of Cultural Property during Armed Conflict, opened for signature 14 May 1954, 249 UNTS

240 (entered into force 7 August 1956) (‘1954 Hague Convention’). 15 1954 Hague Convention arts 2-3.

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include monuments and objects that are worthy of protection because of their importance

‘to the cultural heritage of every people’.16 The term ‘cultural property’ was also used in

the Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and

Transfer of Ownership of Cultural Property 1970.17 Reflecting the subject matter of that

treaty, it confined the term to moveable cultural objects.18 Like the 1954 treaty, it referred

to heritage, stating that the illicit import, export and transfer of ownership of these objects

is ‘one of the main causes of the impoverishment of the cultural heritage of the countries

of origin of such property’.19 Therefore, although these laws did not establish an agreed

definition of ‘cultural property’,20 they did introduce the concept of ‘cultural heritage’

into international law.

Unlike the concept of ‘cultural heritage’ the term ‘natural heritage’ was not used in an

international law before the World Heritage Convention. A conservation movement

began in the late 1800s in the United States, and gained traction in the 1960s when several

landmark publications highlighted the impact of humans on the environment.21 With

increasing evidence that rapid industrialisation and urbanisation were threatening natural

areas,22 awareness about the impact of human activities on the natural environment turned

to concern by the early 1970s.23 This led to the convening of the United Nations

Conference on the Human Environment (UNCHE) in Stockholm in 1972, at which State

parties adopted the now famous Stockholm Declaration.24 That conference ‘marked the

emergence of international environment law as a separate branch of international law’25

and led to a proliferation of treaties on the subject. While the Convention was not adopted

at the UNCHE, its negotiation and drafting were intertwined with preparations for that

conference, so it reflects many of the principles underlying the Stockholm Declaration.

16 1954 Hague Convention art 1. 17 Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural

Property, opened for signature 14 November 1970, 823 UNTS 231 (entered into force 24 April 1972) (‘1970 Convention’). 18 1970 Convention art 1. 19 1970 Convention art 2. 20 Prott and O’Keefe, above n 7, 8. 21 See, eg, Rachel Carson, Silent Spring (1962); Paul Ehrlich, The Population Bomb (Sierra Club and Ballantine Books, 1968);

Donella H Meadows et al, Limits to Growth (Universe Books, 1972). 22 Francesco Francioni, ‘The Preamble’ in Francesco Francioni (ed), The 1972 World Heritage Convention: A Commentary

(Oxford University Press, 2008) 11, 12; Lowenthal, above n 5, 84. 23 Douglas Pocock, ‘Some Reflections on World Heritage’ (1997) 29(3) Area 260, 260. 24 Report of the United Nations Conference on the Human Environment, UN Doc A/CONF.48/14/Rev.1 (5 – 16 June 1972) ch

1 (Declaration of the United Nations Conference on the Human Environment) (‘Stockholm Declaration’). 25 Edith Brown Weiss, Daniel B Magraw and Paul C Szasz, International Environmental Law: Basic Instruments and References

(Transnational Publishers, 1992) 171.

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In the years leading up to the UNCHE, UNESCO and the International Council on

Monuments and Sites (ICOMOS) sought to expand international legal protection of

cultural properties by drafting a treaty for the conservation of monuments, buildings and

sites of universal value.26 At the same time, the International Union for the Conservation

of Nature (IUCN) was preparing a draft Convention for the Conservation of the World’s

Heritage which would protect significant natural areas.27 When a working group

established to assist with preparations for the UNCHE was asked to review these draft

treaties, it recommended that they be combined into one agreement.28

The working group’s recommendation built upon an idea raised by the United States in

1965 for the creation of a ‘World Heritage Trust’ that would preserve natural and scenic

areas and historic sites.29 More generally, it reflected growing recognition of links

between humans and the environment,30 which was increasingly being reflected in

international agreements. The first such agreement was the 1971 Man and the Biosphere

Program, which sought to promote conservation and sustainable use of reserves.31 The

link also underpinned the Stockholm Declaration, which begins with the bold declaration

that ‘[m]an is both creature and moulder of his environment.’32

Consistent with this trend, the working group’s recommendation was accepted, and the

UNESCO/ICOMOS draft treaty on the protection of cultural properties was broadened to

include natural areas.33 This expanded treaty became the World Heritage Convention,

which was adopted by the UNESCO General Assembly in November 1972.

3.2.2 The use of the term ‘heritage’ in the World Heritage Convention

The Convention was the first international agreement designed to protect ‘heritage’. As

noted above, previous international laws dealing with places of cultural significance had

26 International Instruments for the Protection of Monuments, Groups of Buildings and Sites, UN Doc SHC/MD/17 (30 June

1971) annex II. 27 Barbara J Lausche, Weaving a Web of Environmental Law: Contributions of the IUCN Environmental Law Programme

(IUCN/ICEL, 2008) 89. 28 Francioni, above n 22, 14. 29 Titchen, above n 4, 52, 62; Francesco Bandarin, World Heritage: Challenges for the Millennium (UNESCO, 2007) 28;

Catherine Redgwell, ‘Article 2 Definition of Natural Heritage’ in Francesco Francioni (ed), The 1972 World Heritage Convention: A Commentary (Oxford University Press, 2008) 63, 64.

30 Ralph O Slatyer, 'The Origin and Development of the World Heritage Convention' (1984) Monumentum 3, 4. 31 ` Records of the General Conference, 16th sess, UNESCO Res 2.313 (1970) 35 (Intergovernmental Programme on Man and the

Biosphere). 32 Stockholm Declaration, UN Doc A/CONF.48/14/Rev.1, art 1. 33 Titchen, above n 4, 40.

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referred to ‘cultural heritage’, but had sought to protect the narrower concept of ‘cultural

property.34 International environmental laws had addressed the conservation of ‘nature’

or specific flora and fauna, but not natural heritage.35

The shift in language from ‘cultural property’ to ‘cultural heritage’ in international law,

which was solidified by the Convention, was partly a response to the need to

accommodate cultural and natural sites under one agreement.36 ‘Property’ is a key concept

under Western law, which implies control by the owner and the right to alienate and

exclude.37 Because of the connotations associated with that term, it would have been

inappropriate to use it to describe features of the natural environment worthy of

protection.38 In addition, the term ‘heritage’ was more consistent with another view

emerging at the time, namely the need for intergenerational equity.

Before 1972, international environmental laws were limited in scope and based on the

idea that the environment should be conserved for the benefit of present (rather than

future) generations.39 In the 1960s and early 1970s, it was increasingly accepted that

certain cultural properties and natural areas are non-renewable resources that should be

preserved for future generations.40 Thus, a principle underpinning the Stockholm

Declaration was that humans should ‘protect and improve the environment for present

and future generations’.41 This principle would become known as ‘intergenerational

equity’, and is now firmly enshrined in international environmental law.42 As the policy

underlying the concept of ‘property’ is the protection of the rights of the possessor, that

term does not fit well with the principle of intergenerational equity. In contrast, ‘heritage’

is more consistent with the idea that some sites must be conserved for future generations,43

so was a more appropriate term for use in the Convention.

34 Forrest, above n 5, xxi. 35 Redgwell, above n 29, 64. 36 Francioni, above n 11, 229. 37 Lyndel V Prott and Patrick J O’Keefe, ‘‘Cultural Heritage’ or ‘Cultural Property’ (1992) 1(2) International Journal of Cultural

Property 307, 310. 38 Janet Blake, ‘On Defining the Cultural Heritage’ (2000) 49(1) The International and Comparative Law Quarterly 61, 67. 39 Redgwell, above n 29, 64. 40 Blake, above n 38, 67; Francioni, above n 11, 229. 41 Stockholm Declaration, UN Doc A/CONF.48/14/Rev.1, art 1. 42 See, eg, Convention on Biological Diversity, opened for signature 5 June 1992, 1760 UNTS 79 (entered into force 29

December 1993), art 22. 43 Francioni, above n 11, 229. For example, Aplin contends that ‘heritage’ implies a gift for future generations and benefits for

the community: Graeme Aplin, Heritage: Identification, Conservation and Management (Oxford University Press, 2002) 13. Lowenthal defines ‘heritage’ as ‘everything we suppose has been handed down to us from the past’: Lowenthal, above n 5, 81.

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3.2.3 The scope of the concept of ‘World Heritage’

Heritage may be defined as ‘those valuable features of our environment which we seek

to conserve from the ravages of development and decay.’44 However, it is a term of art so

can have many meanings, in part because it is used in a variety of fields including law,

architecture, art and archaeology.45 This chapter does not explore the meaning of the term

in detail, as that has been done extensively elsewhere.46 However, three aspects of the

concept of WH of particular relevance to the Pacific Islands will be highlighted.

Firstly, WH is limited to immovable heritage. Heritage can encompass many elements

including cultural, natural, Indigenous, moveable, immoveable, tangible and intangible

aspects.47 While WH may reflect some of these attributes, it does not include moveable

heritage. In addition, while intangible heritage that is expressed in, or related to, a place

may be considered WH, purely intangible heritage may not. These limitations can be

explained by the fact that the Convention was ‘conceived, supported and nurtured by the

industrially developed societies’ and thus it reflects ‘concern for a type of heritage that

was highly valued in those countries’.48 It has therefore been said that the Convention

regime is ‘not really appropriate for the kinds of heritage most common in regions where

cultural energies have been concentrated in other forms of expression such as artefacts,

dance or oral traditions’49 such as the Pacific. As will be explored in 3.3.2(A), there is

scope for sites associated with intangible values to be considered WH. However, much

of the intangible heritage of Pacific Islanders (including their traditional knowledge,

customs, songs, stories and dances) is not directly protected under the Convention, which

limits the treaty’s relevance in the region.50

44 Graeme Davison, ‘The Meanings of ‘Heritage’’ in Graeme Davison and Chris McConville (eds), A Heritage Handbook (Allen

and Unwin, 1991) 1, 1. 45 Josephine Suzanne Gillespie, Monumental Challenges: Local Perspectives on World Heritage Landscape Regulation at

Angkor Archaeological Park, Cambodia (PhD Thesis, The University of Sydney, 2010) 67. 46 See, eg, Aplin, above n 43, ch 1; Boer and Wiffen, above n 5, ch 1; Davison, above n 44; Lowenthal, above n 5; Maurice

Evans, Principles of Environmental Heritage (Prospect Media, 2000) ch 2; Rodney Harrison, Heritage: Critical Approaches (Routledge, 2013) chs 2, 3.

47 Boer and Wiffen, above n 5, 7. 48 World Commission on Culture and Development, Our Creative Diversity (2nd ed, 1996) quoted in Ian Strasser ‘Putting Reform

into Action: Thirty Years of the World Heritage Convention: How to Reform a Convention without Changing its Regulations’ (2002) 11(2) International Journal of Cultural Property 215, 224.

49 Ibid. 50 Intangible cultural heritage is now covered by the Convention on the Safeguarding of the Intangible Cultural Heritage, opened

for signature 17 October 2003, 2368 UNTS 3 (entered into force 20 April 2006). See UNESCO, Intangible Cultural Heritage in the Pacific (UNESCO, 2011) for discussion of the application of this Convention in the Pacific.

94

Secondly, WH encompasses both cultural and natural heritage, reflecting the origins of

the Convention as outlined in 0. This creates potential for the Convention to be usefully

applied in the Pacific, where the distinction between sites of cultural and natural

significance is often blurred (see 2.2.1(A)). However, the dichotomy between natural and

cultural WH sites under the Convention regime continues to present challenges for the

protection of such places (see 3.3.1(A)).

Thirdly, WH is heritage that has OUV and thus has value to ‘mankind as a whole’.51

Heritage is an inherently subjective concept, as a site’s value depends on who makes that

judgement.52 In the WH context, in practice the decision as to whether a particular site

has OUV is made by the people who represent State parties on the WH Committee,53 so

their views influence the scope of the concept of WH. The next section explains how the

Committee’s relatively narrow interpretation of the term OUV for many years limited the

extent to which Pacific heritage could be considered as WH.

3.3 The World Heritage Committee’s interpretation of the concept of

‘World Heritage’

The Convention does not attempt to protect all natural and cultural heritage, only that

which is exceptional and thus has value for ‘mankind as a whole’. The term OUV was

introduced into the Convention to limit its scope to such places, rather than sites of purely

local, regional or national significance.54 As the term had not been used in international

law prior to its inclusion in the Convention,55 it had no clear legal definition. The

Convention also does not define the term or instruct the Committee to formulate a

definition. However, the Committee is charged with determining whether a site should be

inscribed on the WH List,56 and for defining the criteria by which a site may be listed,57

which has allowed it to give further meaning to the term OUV.

51 World Heritage Convention preamble para 6, arts 1-2. 52 Forrest, above n 5, 7-8; Ben Boer and Stefan Gruber, ‘Heritage Discourses’ in Brad Jessup and Kim Rubenstein (eds),

Environmental Discourses in Public and International Law Cambridge University Press, 2012) 375, 383. 53 World Heritage Convention art 12. A site may have OUV but not be included on the WH List, for example if the relevant

State party has not nominated it. However, because the focus of the World Heritage Convention regime is on sites inscribed on the WH List, in practice the Committee’s decision as to whether a site has OUV (and therefore whether it should be listed) is central to the operation of the regime.

54 For detailed analysis of the origins of the term see Titchen, above n 4. 55 Sarah M Titchen, ‘On the Construction of ‘Outstanding Universal Value’: Some Comments on the Implementation of the

1972 UNESCO World Heritage Convention’ (1996) 1 Conservation and Management of Archaeological Sites 235, 236. 56 World Heritage Convention art 11(2). 57 Ibid art 11(5).

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Early nominations for WH listing were assessed by the Committee and the Advisory

Bodies in a fairly ad hoc manner.58 However, their decision-making became more

standardised when the Committee included provisions to guide the assessment of a site’s

value in the Operational Guidelines for the Implementation of the World Heritage

Convention (the ‘Operational Guidelines’). The current (2016) version of the

Operational Guidelines defines OUV to mean ‘cultural and/or natural significance which

is so exceptional as to transcend national boundaries and to be of common importance for

present and future generations of all humanity’.59 In addition, they prescribe several

criteria and requirements that a site must meet to be considered to have OUV. As

explained below, these criteria and requirements require an assessment of the site’s

intrinsic value and how it is managed and protected (see 3.3.1). Over time, the Committee

has amended them, reflecting changing approaches to heritage and its protection. Through

this process, the scope of the concept of WH has been broadened, making it a better fit

for Pacific heritage (see 3.3.2).

3.3.1 The requirements for World Heritage listing under the 2016 Operational

Guidelines

(A) The criteria for the assessment of Outstanding Universal Value

Pursuant to paragraph 77 of the 2016 Operational Guidelines, to be considered to have

OUV a property must;

(i) represent a masterpiece of human creative genius;

(ii) exhibit an important interchange of human values on developments in

architecture or technology, monumental arts, town planning or landscape

design;

(iii) bear an exceptional testimony to a cultural tradition or civilisation which may

be living or historical;

(iv) be an outstanding example of a type of building, architectural or technological

ensemble or landscape which illustrates a significant stage in human history;

58 Lasse Steiner and Bruno S Frey, ‘Correcting the Imbalance of the World Heritage List: Did the UNESCO Strategy Work?’

(2012) 3 Journal of International Organisation Studies 25, 27. 59 UNESCO, Operational Guidelines for the Implementation of the World Heritage Convention, UN Doc WHC.16/01 (26

October 2016) (‘Operational Guidelines 2016’) para 49.

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(v) be an outstanding example of a traditional human settlement, land-use, or sea-

use which is representative of a culture or human interaction with the

environment;

(vi) be associated with events or living traditions, with ideas, or with beliefs, with

artistic and literary works of outstanding universal significance;

(vii) contain superlative natural phenomena or areas of exceptional natural beauty

and aesthetic importance;

(viii) be an outstanding example representing major stages of earth’s history,

significant on-going geological processes in the development of landforms,

or significant geomorphic or physiographic features;

(ix) be an outstanding example representing significant on-going processes in the

evolution and development of ecosystems and communities of plants and

animals; and/or

(x) contain the most important natural habitats for in-situ conservation of

biological diversity.

Two issues concerning these criteria warrant particular mention here: firstly, the

dichotomy between cultural and natural WH sites; and secondly, the importance of the

selected criteria to the ongoing protection of the site.

The Operational Guidelines previously contained two separate lists of criteria, one for

cultural sites and the other for natural sites, reflecting the separate definitions of ‘cultural

heritage’ and ‘natural heritage’ in the Convention.60 In 2003, the WH Committee resolved

to merge these lists,61 but in practice sites meeting criteria (i) – (vi) in paragraph 77 are

considered to be cultural sites, and those meeting criteria (vii) – (x) are considered to be

natural sites. Sites meeting a criterion in each group are referred to as ‘mixed sites’.62 This

dichotomy is reinforced by the existence of different Advisory Bodies63 for cultural and

natural sites.64 In addition, UNESCO has published different guidance documents for the

60 UNESCO, Operational Guidelines for the Implementation of the World Heritage Convention, UN Doc CC-77/CONF.008 (30

July 1977) para 5(ii). 61 WHC Res 6 EXT.COM 5.1, 6th extraordinary WHC sess, UN Doc WHC-03/6 EXT.COM/8 (27 May 2003) 5. 62 Operational Guidelines 2016, UN Doc WHC.16/01, para 46. 63 The three Advisory Bodies are the International Centre for the Study of the Preservation and Restoration of Cultural Property

(ICCROM), the International Council of Monuments and Sites (ICOMOS) and the International Union for Conservation of Nature and Natural Resources (IUCN). See Table 1 in 1.2.1 for description of their roles.

64 ICOMOS and ICCROM are the Advisory Bodies for cultural sites. IUCN is the Advisory Body for natural sites: Operational Guidelines 2016, UN Doc WHC.16/01, paras 32-37.

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management of cultural65 and natural sites,66 and the WH Committee still refers in its

documents and decisions to natural, cultural and mixed sites.

The Advisory Bodies are working to better coordinate their work, particularly in relation

to mixed sites.67 In addition, the Committee’s recognition of ‘cultural landscapes’ as a

category of WH site helped reinforce the link between culture and nature (discussed

further at 3.3.2(A)). However, a clear distinction remains between the treatment of

cultural and natural sites under the regime, even though a founding principle of the

Convention was the intrinsic link between the two. Consequently, while recognising that

it is problematic to separate Pacific heritage into ‘culture’ and ‘nature’, cultural and

natural WH sites are discussed separately in 3.3.2 below.

The practical importance of the criteria for WH listing must also be recognised. Although

the criteria are located in the Operational Guidelines not the Convention, they are critical

for two key reasons. Firstly, a nomination for WH listing will be deemed incomplete

unless it demonstrates how the site complies with the criteria.68 Thus, they impact the

composition of the WH List. Secondly, they potentially influence the ongoing

management and protection of the site. UNESCO’s WH management manuals note that

a WH site should be managed to conserve all its heritage values.69 However, the

Operational Guidelines state that a WH property should be protected to ensure that its

OUV is sustained or enhanced over time.70 Consequently, in practice the criterion upon

which a site is found to have OUV often becomes the focus of the Committee’s concerns

regarding the site’s protection. For example, East Rennell was inscribed on the WH List

based on the criterion that is now found inparagraph 77(ix) of the Operational Guidelines,

and is therefore considered to be a natural WH site (discussed at 5.3.1). Reflecting this,

the Committee’s resolutions concerning the protection of East Rennell have centred on

threats to the natural environment such as extractive industries and resource harvesting

(see 6.2). The preservation of the area’s cultural values does not fall directly within the

remit of the Convention regime, even though from a local perspective nature and culture

are intrinsically linked. At East Rennell, this exacerbates the disconnect between the

65 UNESCO et al, Managing Cultural World Heritage, World Heritage Resource Manual (UNESCO, 2013). 66 UNESCO et al, Managing Natural World Heritage, World Heritage Resource Manual (UNESCO, 2012). 67 See, eg, Reports of the Advisory Bodies, WHC 39th sess, UN Doc WHC-15/39.COM/5B (15 May 2015) para 23; Progress

Report on the Reflection on Processes for Mixed Nominations, WHC 39th sess, UN Doc WHC-15/39.COM/9B (15 May 2015). 68 Operational Guidelines 2016, UN Doc WHC.16/01, para 132(3). 69 See, eg, UNESCO et al, above n 66, 37. 70 Ibid para 96.

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global and local perceptions of the site’s value, which is a challenge for its protection

(discussed further at 3.3.2(B)).

(B) The conditions of integrity and authenticity

In addition to the criteria discussed above, the Committee considers that a site must meet

the ‘conditions of integrity’ in order to be eligible for WH listing.71 An assessment of a

site’s integrity considers the wholeness and intactness of the property.72 Among other

things, it requires the Committee to consider whether the property contains all elements

necessary to express its OUV, and whether it suffers from adverse effects of development

or neglect.73 An assessment of integrity is therefore related to the issue of site boundaries,

which is explored in 4.3.3(D).

A further requirement that applies to cultural sites is that they must meet the condition of

authenticity.74 A property will be found to meet this condition if its value is credibly and

truthfully expressed rather than being a copy or replica.75 Like the criteria, the

Committee’s views concerning authenticity have changed since the requirement was first

introduced, demonstrating increasing appreciation of the need for the OUV requirements

to reflect the diversity of the world’s heritage (see 3.3.2(A)).

(C) Adequate protection and management

The Committee also considers that a site only has OUV if it has ‘an adequate protection

and management system to ensure its safeguarding’.76 This requirement and its

implications for the Pacific are explored in 4.3.3.

3.3.2 The Committee’s changing approach to Outstanding Universal Value

As the criteria and requirements for OUV are contained in the Operational Guidelines

not the Convention, the Committee has been able to amend them to accommodate

71 Ibid para 87 72 Ibid para 88. 73 Ibid para 88. See also ibid paras 89-95. 74 Ibid para 79. 75 Ibid para 80. See also ibid paras 81-86. 76 Ibid para 78.

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changing perceptions concerning heritage and its protection. Over time the Committee

has broadened the criteria and requirements for cultural sites so that a greater range of

heritage places are now eligible for WH listing (see (A)). The criteria for natural WH sites

have also been amended, reflecting developments in international environmental law (see

(B)). These changes and their implications for the Pacific are explored below.

(A) The criteria for cultural World Heritage sites77

(A.I) The criteria for cultural World Heritage sites: Key changes to the criteria

The feasibility of prescribing criteria for assessing whether a site has OUV was debated

by delegates at the first WH Committee meeting in 1977.78 Heritage is an inherently

subjective concept, with the value of a piece of heritage depending on who is making that

assessment. As a result, ‘the value of heritage may be skewed in favour of the current

fashions favoured by those in the heritage industry’ as opposed to ‘reflect[ing] the views

of those who ‘own’ the heritage’.79 At the 1977 Committee meeting, delegates expressed

concern over how criteria would be applied given the subjectivity of an evaluation of

heritage values, the potential impact of Western views on that evaluation, and the fact that

heritage may be perceived differently by those within a culture as compared to those on

the outside.80 Despite these concerns, criteria were included in the first version of the

Operational Guidelines,81 and have been retained (albeit in a revised form) in all

subsequent revisions.

The concerns described above have been played out. In the early years of the

implementation of the Convention, the Committee (which was dominated by Europeans)

was most concerned about the protection of ancient structures and the monumental

heritage of Europe.82 This was reflected in its drafting of the criteria for WH listing, which

77 For comprehensive analysis of the criteria for cultural heritage sites see, eg, Titchen, above n 4, in particular chs 5, 8; Jukka

Jokilehto, What is OUV? Defining the Outstanding Universal Value of Cultural World Heritage Properties (ICOMOS, 2008), in particular chs 3-4.

78 Report of the World Heritage Committee, WHC 1st sess, UN Doc CC-77/CONF.001/9 (17 October 1977) para 19. 79 Gillespie, above n 45, 67. 80 Report of the World Heritage Committee, WHC 1st sess, UN Doc CC-77/CONF.001/9 (17 October 1977) para 19. 81 UNESCO, Operational Guidelines for the Implementation of the World Heritage Convention, UN Doc CC-77/CONF.008 (30

July 1977). 82 Sophia Labadi, ‘A Review of the Global Strategy for a Balanced, Representative and Credible World Heritage List 1994 –

2004’ (2005) 7(2) Conservation and Management of Archaeological Sites 89, 89-90.

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until 1992 favoured sites of value because of their architectural or artistic characteristics,

rather than places with less tangible heritage values.83

Soon after sites began to be inscribed on the WH List, the influence of the criteria on the

List’s composition became a topic of discussion among the Committee and the Advisory

Bodies. However, the Committee did not have a formal plan to address the imbalances

that were emerging in the List until 1994, when it adopted the Global Strategy for a

Representative, Balanced and Credible World Heritage List.84 The meetings and studies

that preceded the adoption of that strategy highlighted the need for the Committee to

reconsider what constitutes heritage of OUV, so that the List better reflects the diversity

of heritage places around the world.85

Discussions concerning the imbalances in the WH List also raised questions about the

potential for sites demonstrating the interactions between people and the environment to

be listed.86 Of particular concern was the absence of ‘cultural landscapes’ on the List,

being places that illustrate the evolution of human society and settlement over time, as

influenced by the natural environment, social, economic and cultural forces.87 Before

1992, there was some scope for cultural landscapes to be listed pursuant to the natural

criteria, which referred to sites representing ‘man’s interaction with his natural

environment’ and ‘exceptional combinations of natural and cultural elements’.88

However, there was confusion as to how these criteria should be applied, given that the

definition of ‘natural heritage’ in Article 2 of the Convention is not sufficiently broad to

encompass sites of that type.89 In contrast, ‘cultural heritage’ as defined under the

Convention is clearly able to encompass cultural landscapes. Article 2 defines ‘cultural

83 UNESCO, World Heritage: Challenges for the Millennium (UNESCO, 2007) 39. 84 WHC Res CONF 003 X.10, WHC 18th sess, UN Doc WHC-94/CONF.003/16 (31 January 1995) 41-44. See 1.2.3 for

discussion of the Global Strategy. 85 Abdulqawi A Yusuf, ‘Article 1 Definition of Cultural Heritage’ in Francesco Francioni (ed), The 1972 World Heritage

Convention: A Commentary (Oxford University Press, 2008) 23, 31-40. 86 Mechtild Rössler, ‘Managing World Heritage Cultural Landscapes and Sacred Sites’ in Eléonore de Merode, Rieks Smeets

and Carol Westrik (eds), Linking Universal and Local Values: Managing a Sustainable Future for World Heritage, World Heritage Papers 13 (UNESCO, 2004) 45, 45; Nora Mitchell, Mechtild Rössler, Pierre-Marie Tricaud, World Heritage Cultural Landscapes: A Handbook for Conservation and Management, World Heritage Papers 26 (UNESCO, 2009) 3.

87 For discussion of the recognition of cultural landscapes under the World Heritage Convention regime in the Asia Pacific context see, eg, Ken Taylor and Kirsty Altenburg, ‘Cultural Landscapes in Asia-Pacific: Potential for Filling World Heritage Gaps’ (2006) 12(3) International Journal of Heritage Studies 267; Natsuko Akagawa and Tiamsoon Sirisrisak, ‘Cultural Landscapes in Asia and the Pacific: Implications of the World Heritage Convention’ (2008) 14(2) International Journal of Heritage Studies 176.

88 UNESCO, Operational Guidelines for the Implementation of the World Heritage Convention, UN Doc WHC/2/Revised (December 1998) para 36(a)(ii)-(iii).

89 Titchen, above n 4, 209.

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heritage’ to include sites that represent the ‘combined works of nature and man’, as well

as buildings of OUV because of their place in the landscape.90

In recognition of these issues, in 1994 the Committee significantly amended the criteria

for WH listing.91 It removed references to interactions between culture and nature from

the natural criteria, and broadened the cultural criteria by moving from a ‘purely

architectural view of the cultural heritage of humanity towards one which [is] much more

anthropological, multi-functional and universal’.92 Among other things, this involved

amending the cultural criteria to encompass sites associated with living cultures93 and

places evidencing human interaction with the environment.94 The Committee also

formally recognised ‘cultural landscapes’ as a category of WH site, and included guidance

principles for the listing of such sites in the Operational Guidelines.95

The Committee’s broadening of the criteria corresponded with changing views

concerning authenticity. The Operational Guidelines now state that an assessment of a

site’s authenticity should be based on the Nara Document on Authenticity,96 which was

adopted by participants at the 1994 ‘Nara Conference on Authenticity in Relation to the

World Heritage Convention’.97 The Nara Document acknowledges that values attributed

to cultural properties may differ from culture to culture, and within cultures, so

judgements about authenticity cannot be based on fixed criteria.98 Rather, heritage

properties must be judged within their cultural context.99 Importantly, the Committee now

recognises that authenticity may be expressed through a variety of attributes including

traditions, techniques and management systems; language and other forms of intangible

heritage; and spirit and feeling.100 This has made assessments of authenticity more

applicable to a range of cultural contexts.101

90 World Heritage Convention art 1. 91 WHC Res CONF 003 XIV.3, WHC 18th sess, UN Doc WHC-94/CONF.003/16 (31 January 1995) 64-68. 92 Report on the Expert Meeting on the ‘Global Strategy’ and Thematic Studies for a Representative World Heritage List, WHC

18th sess, UN Doc WHC-94/CONF.003/INF.6 (13 October 1994) 4. 93 Operational Guidelines 2016, UN Doc WHC.16/01, para 77(iii), (vi). 94 Ibid para 77(v). 95 Ibid para 47, annex 3. 96 Nara Document on Authenticity (1994); Operational Guidelines 2016, UN Doc WHC.16/01, para 79, annex 4. 97 For history of the Nara Document see, eg, Christina Cameron and Nobuko Inaba, ‘The Making of the Nara Document on

Authenticity’ (2015) 46(4) APT Bulletin 30. 98 Nara Document on Authenticity (1994) para 11. 99 Ibid. 100 Ibid para 13. 101 Naomi Deegan, ‘The Local-Global Nexus in the Politics of World Heritage: Space for Community Development?’ in Marie-

Theres Albert, Marielle Richon, Marie José Viñals and Andrea Witcomb (eds), Community Development through World Heritage, World Heritage Papers 31 (UNESCO, 2012) 77, 79.

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(A.II) The criteria for cultural World Heritage sites: Application in the Pacific

The relatively narrow scope of the cultural criteria prior to 1992 may have contributed to

the under-representation of Pacific Island heritage on the WH List. However,

notwithstanding the expansion of the criteria, few sites in the independent Pacific Island

States have been listed. Furthermore, only two of these are cultural landscapes (despite

the prevalence of such places in the region) and only two represent the living cultures of

Pacific Islanders. This raises the question of whether the cultural criteria still present

impediments to the listing of Pacific sites.

This question was explored by Anita Smith, who concluded that the concept of OUV (as

framed in the current criteria), and the arguments and evidence required to demonstrate

that a site meets that threshold, can accommodate sites of value to Pacific Islanders.102

Her conclusion was based on several sites that were being considered for nomination or

had been inscribed on the WH List, including Chief Roi Mata’s Domain in Vanuatu.103

Chief Roi Mata’s Domain (a cultural landscape) was listed in 2008104 on the basis of

criteria (iii), (v) and (vi) in the 2008 version of the Operational Guidelines.105 The site

comprises areas associated with the life and death of Chief Roi Mata, who died in around

1600AD and is credited with initiating important social reforms.106 Criterion (iii) was

previously limited to sites that bore testimony to an extinct civilisation,107 but in 1994 was

expanded to also apply to living cultural traditions and civilisations.108 While substantial

archaeological research provides some evidence of the site’s heritage value, the site has

OUV because of the local communities’ continuing customary knowledge of and respect

for the place.109 Consequently, the expansion of criterion (iii) facilitated the site’s listing

based on its association with the living traditions of its customary owners.

102 Anita Smith, ‘World Heritage and Outstanding Universal Value in the Pacific Islands’ (2015) 21(2) International Journal of

Heritage Studies 177, 187. 103 In addition to Chief Roi Mata’s Domain, in support of her argument Smith refers to the listing of Papahānaumokuākea, in

Hawaii, USA as a mixed site, and two sites being considered for nomination: the ‘Yapese Stone Money’ site (a proposed transnational serial site from Palau and Yap in the Federated Sites of Micronesia) and the Sacred Site of Taputapuatea/Te Po and the Opoa Valley (in French Polynesia).

104 WHC Res 32 COM 8B.27, WHC 32nd sess, UN Doc WHC-08/32.COM/24Rev (31 March 2009) 170. 105 UNESCO, Operational Guidelines for the Implementation of the World Heritage Convention, UN Doc WHC.08/01 (January

2008) (‘Operational Guidelines 2008’). 106 Republic of Vanuatu, Chief Roi Mata’s Domain – Nomination by the Republic of Vanuatu for Inscription on the World

Heritage List (2007); WHC Res 32 COM 8B.27, WHC 32nd sess, UN Doc WHC-08/32.COM/24Rev (31 March 2009) 170 para 3.

107 UNESCO, Operational Guidelines for the Implementation of the World Heritage Convention, UN Doc WHC/2/Revised (27 March 1992) para 24(a)(iii) (‘Operational Guidelines 1992’).

108 WHC Res CONF 003 XIV.3, WHC 18th sess, UN Doc WHC-94/CONF.003/16 (31 January 1995) 64-68. See Operational Guidelines 2008, UN Doc WHC.08/01, para 77(iii).

109 Smith, above n 102, 182.

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When Smith conducted her analysis, Chief Roi Mata’s Domain was the only listed WH

site within the independent Pacific Island States inscribed because of its association with

living cultures. Since that time, a site in the Federated States of Micronesia referred to as

‘Nan Madol: Ceremonial Centre of Eastern Micronesia’ has been listed.110 That site

contains remains of stone palaces, temples, mortuaries and residential domains bearing

testimony to the development of chiefly societies.111 The continuing association of the

site with social and ceremonial traditions and systems of customary governance was also

recognised in the site’s listing.112 The inscription of Nan Madol therefore reinforces

Smith’s finding that the expansion of the cultural criteria has opened the door for the

listing of sites associated with the living customs of Pacific Islanders.

The Kuk Early Agricultural Site (Kuk) is another Pacific cultural landscape on the WH

List. That site, in the western highlands of PNG, contains archaeological remains

demonstrating a transformation of agricultural practices that occurred around 6,500 years

ago.113 It was found to have OUV on the basis of criteria (iii) and (iv) in the 2008 version

of the Operational Guidelines.114 Criterion (iv) applies to sites that illustrate a significant

stage in history, and was expanded in 1994 from buildings and architectural ensembles115

to also encompass landscapes.116 This amendment made the criterion applicable to Kuk.

and potentially more relevant to other Pacific heritage places.

While the inclusion of Kuk in the WH List was important in terms of the recognition of

Pacific landscapes, the site is what Smith describes as an ‘Oceanic or island expression

of a global narrative’,117 rather than one representing the living traditions of Pacific

Islanders. Smith notes that other cultural sites on the WH List in the region have also been

found to have OUV because of their interpretation through global narratives:118 the

Levuka Historical Port Town in Fiji is an example of European settlement in the Pacific

110 WHC Res 40 COM 8B.22, WHC 40th sess, UN Doc WHC/16/40.COM/19 (15 November 2016) 217. 111 ICOMOS, Evaluations of Nominations of Cultural and Mixed Properties to the World Heritage List, WHC 40th sess, UN Doc

WHC/16/40.COM/INF.8B1 (July 2016) 103 (Nan Madol, Federated States of Micronesia, Advisory Body Evaluation 1503) 106.

112 Ibid. 113 Government of Papua New Guinea, Kuk Early Agricultural Site Cultural Landscape - A Nomination for Consideration as

World Heritage Site (2007). 114 WHC Res 32 COM 8B.26, WHC 32nd sess, UN Doc WHC-08/32.COM/24Rev (31 March 2009) 168; Operational Guidelines

2008, UN Doc WHC.08/01, para 77(iii)-(iv). 115 Operational Guidelines 1992, UN Doc WHC/2/Revised, para 24(a)(iv). 116 WHC Res CONF 003 XIV.3, WHC 18th sess, UN Doc WHC-94/CONF.003/16 (31 January 1995) 64-68. See Operational

Guidelines 2008, UN Doc WHC.08/01, para 77(iv). 117 Smith, above n 102, 181. 118 Ibid.

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Islands, which reflects the contact and interchange of values between colonisers and the

Pacific Islanders;119 the Bikini Atoll Nuclear Test Site in Marshall Islands120 bears

testimony to the birth of the Cold War and the nuclear era; and the Rock Islands Southern

Lagoon in Palau is a mixed site, gaining its OUV from the remains of stone villages, rock

art, cave deposits and burials, which evidence the development of Pacific Island societies,

as well as its exceptional marine environment and biodiversity.121

Documents such as the Pacific Appeal122 suggest that Pacific Islanders are most

concerned to ensure the protection of their ‘spiritually-valued natural features and cultural

places’, which are related to the ‘origins of peoples, the land and sea, and other sacred

stories’.123 While the cultural WH sites referred to in the paragraph above are significant,

they are not examples of the types of places most valued by Pacific Islanders.124

Consequently, although the criteria for WH listing are now broad enough to accommodate

such sites, impediments to their nomination and listing remain to be addressed (see 1.2.3).

Furthermore, the implications of listing sites that possess very different global and local

significance warrant further consideration. This latter issue is explored below, in the

context of the inscription of Pacific places as natural WH sites.

(B) The criteria for natural World Heritage sites

(B.I) The criteria for natural World Heritage sites: Key changes

The natural criteria are those in paragraphs (vii) – (x) of paragraph 77 in the 2016

Operational Guidelines. These criteria have been amended over time,125 but the changes

have been less contentious than those made to the cultural criteria. The most significant

amendments were made in 1994, reflecting the substantial developments in international

environmental law that occurred in 1992.126 The United Nations Conference on

Environment and Development held in that year led to the adoption of several instruments

119 WHC Res 37 COM 8B.25, WHC 37th sess, UN Doc WHC-13/37.COM/20 (5 July 2013) 186, 186 para 3. 120 WHC Res 34 COM 8B.20, WHC 34th sess, UN Doc WHC-10/34.COM/20 (3 September 2010) 206, 207 para 3. 121 WHC Res 36 COM 8B.12, WHC 36th sess, UN Doc WHC-12/36.COM/19 (June – July 2012) 165, 165 para 3. 122 Presentation of the World Heritage Programme for the Pacific, WHC 31st sess, UN Doc WHC-07/31.COM/11C (10 May

2007) annex I (Appeal to the World Heritage Committee from the Pacific Island State Parties). The Pacific Appeal is discussed at 1.2.4.

123 Ibid annex I para 11. 124 For example, Brown has noted that the listing of the Bikini Atoll has privileged 12 years of the area’s history (1946-1958) and

‘reduced the Bikinian people’s story to a subplot’: Steve Brown, ‘Archaeology of Brutal Encounter: Heritage and Bomb Testing on Bikini Atoll, Republic of the Marshall Islands’ (2013) 48 Archaeology in Oceania 26, 36.

125 For analysis of the development of the criteria for natural sites see Redgwell, above n 29; Titchen, above n 4, ch 5. 126 Redgwell, above n 29, 67.

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that introduced new concepts to international law, including ‘ecosystems’ and

‘biodiversity conservation’.127 Those concepts are now referred to in criteria (ix) and (x).

No substantial changes have been made to the natural criteria since 1994, however they

were renumbered following the Committee’s decision in 2003 to merge the cultural and

natural criteria into one list.

(B.II) The criteria for natural World Heritage sites: Application in the Pacific

Three sites in the Pacific have been inscribed on the WH List on the basis of natural WH

criteria. The first was East Rennell in Solomon Islands, which was listed in 1998.128 It

was found to meet criterion (ix) on the basis that it is a ‘stepping stone in the migration

and evolution of species in the western Pacific’, and because of the speciation processes

that have happened on the island, particularly in relation to bird life.129 The Phoenix

Islands Protected Area in Kiribati was listed in 2008 based on criteria (vii) and (ix).130 It

is considered to have OUV as an ‘oceanscape’ exhibiting exceptional natural beauty, and

because of its contribution to evolutionary processes and the development of global

marine ecosystems.131 In 2012, Rock Islands Southern Lagoon in Palau was listed as a

mixed site. In addition to some cultural criteria, it was found to meet criteria (vii), (iv)

and (x) due to its exceptional marine environment and biodiversity.132

Studies undertaken by IUCN as part of the implementation of the Global Strategy for a

Representative, Balanced and Credible World Heritage List suggest there is scope for the

listing of further natural WH sites in the Pacific. IUCN has noted that natural heritage of

OUV is not evenly distributed around the world, and therefore regional balance of listed

natural WH sites is neither desirable nor achievable.133 Consequently, most IUCN studies

focus on the global distribution of listed WH sites in terms of biogeographic realms,

biomes and habitats, or themes such as wetlands, coastal areas, mountains, forests and

geological sites, rather than their regional distribution. IUCN’s work did however identify

127 Redgwell, above n 29, 75. 128 WHC Res CONF 203 VIII.A.1, WHC 22nd sess, UN Doc WHC-98/CONF/203/18 (29 January 1999) 25. 129 Adoption of Retrospective Statements of Outstanding Universal Value, WHC 36th sess, UN Doc WHC-12/36.COM/8E (15

June 2012) 55-6 (East Rennell, Solomon Islands); WHC Res 36 COM 8E, WHC 36th sess, UN Doc WHC-12/36.COM/19 (June-July 2012) 225.

130 WHC Res 34 COM 8B.2, WHC 34th sess, UN Doc WHC-10/34.COM/20 (3 September 2010) 165. 131 Nominations to the World Heritage List, WHC 35th sess, UN Doc WHC-11/35.COM/8B.Add (27 May 2011) 10-11 (Statement

of Outstanding Universal Value: Phoenix Islands Protected Area, Kiribati); WHC Res 35 COM 8B.60, WHC 35th sess, UN Doc WHC-11/35.COM/20 (7 July 2011) 249.

132 WHC Res 36 COM 8B.12, WHC 36th sess, UN Doc WHC-12/36.COM/19 (June – July 2012) 165, 165 para 3. 133 IUCN, The World Heritage List: Future Priorities for a Credible and Complete List of Natural and Mixed Sites (IUCN, 2004)

3.

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several sites in the Pacific Islands worthy of inscription on the WH List as natural sites.134

Hazen and Anthamatten’s analysis of the ecological representativeness of the WH List

also highlighted that determining an optimal definition of ‘representation’ in the context

of the natural listed WH sites is controversial, because of the diverse ways that site

distribution can be assessed.135 However, they too identified some ecological realms that

were clearly under-represented on the WH List, including the Pacific Islands.136 These

studies do not suggest that the natural criteria in the Operational Guidelines present any

barrier to the recognition of Pacific places as WH sites. The more pertinent question is

whether it is appropriate to list such places purely based on natural criteria.

A variation between the global and local significance of a site can exist at any type of

WH site. As noted in 3.3.2(A), many cultural sites in the Pacific have been found to have

OUV because of their interpretation through global narratives rather than being

representative of Pacific Islander values.137 A variation will almost certainly exist (and

may be more pronounced) at natural WH sites in the Pacific, give that most environments

also have cultural significance and are under customary tenure. As Ballard and Wilson

have said, ‘classifying any Melanesian landscape as natural, whether under a national

conservation programme or as a World Heritage site, effectively obscures a series of

claims to cultural knowledge and ownership by local communities’.138 As such, the listing

of natural WH sites in the Pacific can create a situation where the values that make the

site eligible for inscription are very different to those that local communities attach to the

property.

The question of whether Pacific places should be listed as natural WH sites should be

considered on a case-by-case basis. It must be remembered that while the concepts of

nature and culture are closely linked in the Pacific, not all significant sites will qualify for

WH listing as cultural landscapes. It is likely that many such places will only meet the

OUV threshold based on their natural values. Indeed, there are sites on the Tentative

134 See, eg, Jim Thorsell and Todd Sigaty, A Global Overview of Forest Protected Areas on the World Heritage List (IUCN,

1997) 21; Jim Thorsell, Renée Ferster and Todd Sigarty, A Global Overview of Wetland and Marine Protected Areas on the World Heritage List (IUCN, 1997) 21; Tim Wong et al (eds), Proceedings of the Asia-Pacific Forum on Karst Ecosystems and World Heritage (Gunung Mulu National Park World Heritage Area, Malaysia, 26 – 30 May 2001) 45.

135 Helen Hazen and Peter Anthamatten, ‘Unnatural Selection: An Analysis of the Ecological Representativeness of Natural World Heritage Sites’ (2007) 59(2) The Professional Geographer 256, 256.

136 Ibid 264. 137 Smith, above n 102, 181. 138 Chris Ballard and Meredith Wilson, ‘Unseen Monuments: Managing Melanesian Cultural Landscapes’ in Ken Taylor and

Jane L Lennon (eds), Managing Cultural Landscapes (Routledge, 2012) 130, 134.

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Lists139 of Pacific Island States which are identified as meeting natural heritage criteria

only.140 If the listing of natural WH sites in the Pacific was ruled out, such places could

not be listed at all (under the current Operational Guidelines). Whether that would be a

better outcome than listing them purely based on natural criteria should be considered on

an individual basis.

This thesis does not advocate against the listing of natural WH sites in the Pacific region.

It does however argue that the implications of any disconnect between the global and

local significance of a WH site should be explored at the nomination stage. Through the

analysis of East Rennell in Part 3, this research demonstrates that inscribing a Pacific

place based on natural WH values only can create or at least exacerbate challenges

associated with the site’s protection. Strategies to safeguard the OUV of such a place will

often need to try to bridge any variation between the site’s global and local significance,141

but achieving that can be difficult in practice. This issue should therefore be considered

when deciding whether to nominate an area as a natural WH site.

3.4 Conclusion

This chapter has highlighted three key features of the concept of WH under the

Convention. Firstly, it is limited to immoveable heritage, which limits the extent to which

the Convention can be used to protect Pacific heritage. Secondly, it encompasses both

natural and cultural heritage, reflecting the era in which the Convention was drafted.

While this creates significant potential for the regime to apply to Pacific sites, a

dichotomy remains between natural and cultural WH, which poses challenges for the

recognition and protection of such places. Finally, WH is an inherently subjective

concept, and the Committee’s assessment of the concept of OUV essentially dictates the

scope of the regime. Over time, the Committee has broadened its interpretation of the

concept, and has recognised ‘cultural landscapes’ as a category of WH site, which has

allowed a greater range of Pacific places to meet the WH threshold.

139 See Table 1 in 1.2.1 for explanation of Tentative Lists. 140 For example, a site referred to as ‘Tropical Rainforest Heritage of Solomon Islands’ (which is on Solomon Islands’ Tentative

List) is proposed as a natural WH site. 141 Eric L Edroma, ‘Linking Universal and Local Values for the Sustainable Management of World Heritage Sites’ in Eléonore

de Merode, Rieks Smeets and Carol Westrik (eds), Linking Universal and Local Values: Managing a Sustainable Future for World Heritage (UNESCO, 2004) 36, 40.

108

Smith’s work demonstrates that the criteria for WH listing are now sufficiently broad to

encompass many heritage places in the Pacific. However, such sites (particularly those

associated with the living cultures of Pacific Islanders) remain barely represented on the

WH List, so barriers to their nomination still need to be addressed. The implications of

listing sites which possess markedly different global and local significance also warrant

further consideration, including the challenges this presents for conservation.

As the boundaries of the concept of ‘WH’ are broadening, there is a corresponding need

to also expand our thinking concerning how heritage places should be protected. The next

chapter therefore examines the protection regime established by the Convention, and the

Committee’s changing approach to WH conservation.

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Chapter 4: The protection of Pacific Island heritage through the World Heritage Convention regime

4.1 Introduction

Chapter 3 explored the concept of ‘World Heritage’ (WH) and concluded that the

Committee’s broadened interpretation of the notion of ‘outstanding universal value’

(OUV) has increased the potential for Pacific sites to qualify for WH listing. This chapter

considers the protection of such places under the World Heritage Convention1 (the

Convention). It explores the Convention regime, and changes to the Committee’s

approach to WH conservation that have occurred since the treaty was signed. The analysis

of these issues in the Pacific context, and through a legal lens, has enabled key

opportunities and challenges concerning the protection of Pacific WH under law to be

identified.

In the previous chapter, the concept of WH was analysed with reference to the Convention

text (3.2) and the WH Committee’s interpretation of the concept (3.3). This chapter adopts

a similar structure. It begins by exploring the Convention regime as established by the

Convention text (4.2). It explains that the obligations imposed by the Convention on State

parties and the international community (4.2.1 and 4.2.3), and the structural elements it

creates (4.2.4), attempt to balance national sovereignty over heritage sites with the

international community’s interest in the preservation of such places. Reflecting the era

in which the law was drafted, the Convention does not mention the role of non-State

actors, other than the three international Advisory Bodies (4.2.2). As will be explained,

each of these features influences the scope for the Convention to be used to protect Pacific

heritage.

The Committee’s changing approach to WH protection is then considered (4.3). The

Committee’s views on this issue are significant because it has substantial decision-

making powers, and it can influence the implementation of the Convention by State

parties. The chapter focuses on three key changes of relevance to Pacific Island States:



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the Committee’s recognition of the relationship between heritage protection and

sustainable development (4.3.1), its growing appreciation of the rights and roles of local

communities in heritage protection (4.3.2), and its decision to allow sites protected

through customary systems to be inscribed on the WH List (4.3.3). The chapter covers

the international developments that contributed to these changes, relevant amendments to

the Operational Guidelines for the Implementation of the World Heritage Convention2

(the ‘Operational Guidelines’), and implications for Pacific Island States.

This analysis demonstrates that the Convention protection regime is evolving. This is

possible because the Convention text establishes a framework only, allowing the

Committee and State parties to implement it in accordance with their contemporary views.

Consequently, Pacific Island States have an opportunity to protect their WH in a manner

appropriate to their context. Notwithstanding this, significant challenges arise from some

inherent features of the Convention regime, provisions of the Operational Guidelines, and

the nature of Pacific Island States. Key challenges identified here will be explored further

in the Solomon Islands context in Part 3 of this thesis.

4.2 The protection regime established by the World Heritage

Convention

4.2.1 Balancing national sovereignty and the international community’s interest in

World Heritage protection

Before the adoption of the Convention, most States maintained that State sovereignty was

paramount, and should only be ‘pierced’ in relation to the most important of issues, such

as human rights.3 Therefore, States tended to view heritage sites as being wholly subject

to their sovereignty.4 Developments such as the 1954 Convention for the Protection of

Cultural Property during Armed Conflicts, which declared that certain properties form

2 UNESCO, Operational Guidelines for the Implementation of the World Heritage Convention, UN Doc WHC.16/01 (26

October 2016) (‘Operational Guidelines 2016’). 3 Craig Forrest, International Law and the Protection of Cultural Heritage (Routledge, 2011) 390; Francesco Francioni and

Federico Lenzerini, ‘The Future of the World Heritage Convention: Problems and Prospects’ in Francesco Francioni (ed), The 1972 World Heritage Convention: A Commentary (Oxford University Press, 2008) 401, 404.

4 Guido Carducci, ‘Articles 4 – 7 National and International Protection of the Cultural and Natural Heritage’ in Francesco Francioni (ed), The 1972 World Heritage Convention: A Commentary (Oxford University Press, 2008) 103, 115.

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part of the ‘cultural heritage of mankind’,5 reflected a growing view that the international

community had an interest in heritage protection, notwithstanding State sovereignty.6

In the years leading up to the adoption of the Convention, it also became increasingly

evident that the international community could play a valuable role in heritage protection.

This was highlighted by successful campaigns in the 1960s to rescue important heritage

sites, led by the United Nations Educational, Scientific and Cultural

Organisation (UNESCO).7 The most notable campaign aimed to save the Abu Simbel

temples from rising waters of the Nile, caused by the Egyptian government’s construction

of the Aswan Dam. In a demonstration of international commitment and co-operation,

over 50 nations donated half of the $80 million required to relocate the temples.8

Campaigns to save cultural objects in Venice and Florence from flooding were similarly

successful,9 making it clear to UNESCO that the Convention should promote cooperative

efforts to protect heritage. Furthermore, during this era many States were achieving

independence, and it was evident that they would need help to protect their heritage whilst

also striving for economic development.10

Due to these views, the Convention regime was designed to encourage international

cooperation for the protection of WH, whilst not unduly intruding on State sovereignty.11

This is reflected in Articles 4 to 7 of the Convention, which set out the respective

obligations of State parties and the international community in the protection of WH.

Articles 4 and 5 of the Convention contain the principal obligations of State parties

regarding the protection of WH. Article 4 states:

Each State Party to this Convention recognizes that the duty of ensuring the identification, protection, conservation, presentation and transmission to future generations of the cultural and natural heritage referred to in Articles 1 and 2 and situated on its territory, belongs primarily to that State. It will do all it can to this end, to the utmost of its own resources and,

5 Convention for the Protection of Cultural Property during Armed Conflict, opened for signature 14 May 1954, 249 UNTS

240 (entered into force 7 August 1956) preamble para 2 (‘1954 Hague Convention’). 6 Francioni and Lenzerini, above n 3, 404. 7 See, eg, Edward J Goodwin, ‘The World Heritage Convention, the Environment and Compliance’ (2008-2009) 20 Colorado

Journal of International Environmental Law and Policy 157, 158-159; Forrest, above n 3, 227. 8 Allan Galis, ‘UNESCO Documents and Procedure: The Need to Account for Political Conflict When Designating World

Heritage Sites’ (2009-2010 38 Georgia Journal of International and Comparative Law 205, 208. 9 Francesco Francioni, ‘The Preamble’ in Francesco Francioni (ed), The 1972 World Heritage Convention: A Commentary

(Oxford University Press, 2008) 11. 10 Forrest, above n 3, 229. 11 Gionata P Buzzini and Luigi Condorelli, 'Article 11 List of World Heritage in Danger and Deletion of a Property from the

World Heritage List' in Francesco Francioni (ed), The 1972 World Heritage Convention: A Commentary (Oxford University Press, 2008) 175, 179; Susan Shearing, ‘Here Today, Gone Tomorrow? Climate Change and World Heritage’ (2008) 12(2) The Australasian Journal of Natural Resources Law and Policy 161, 164; Ian Strasser, ‘Putting Reform into Action: Thirty Years of the World Heritage Convention: How to Reform a Convention without Changing its Regulations’ (2002) 11(2) International Journal of Cultural Property 215, 216-7.

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where appropriate, with any international assistance and co-operation, in particular, financial, artistic, scientific and technical, which it may be able to obtain.

Article 5 then lists some broad measures that a State party must take to comply with its

Article 4 duties (see 4.2.3 for further analysis).

Although the Convention imposes the primary duty to protect WH on State parties, it

acknowledges that such sites have value for humankind as a whole,12 and that State action

may be insufficient to effectively protect heritage.13 Thus, pursuant to Articles 6 and 7,

the international community also has obligations concerning the conservation of WH.

Article 6 states that the international community has a duty to cooperate for the protection

of WH,14 and as such each State party undertakes to help others comply with their

Convention duties, when requested to do so.15 Article 7 then says that ‘international

protection’ of WH means ‘the establishment of a system of international cooperation and

assistance designed to support State parties to the Convention in their efforts to conserve

and identify that heritage’. Read together, these articles confirm that the international

community’s role is ‘secondary and auxiliary’,16 designed to supplement not supplant the

role of the State party. This is confirmed by the Convention’s Preamble, which notes that

although it is incumbent on the international community to participate in the protection

of WH, collective action shall not take the place of action by the State concerned.17

Through its delineation of the roles of State parties and the international community, the

Convention seeks a ‘delicate balance between national sovereignty and international

intervention’.18 This can also be seen in the structural elements established by the

Convention (the WH Committee, the WH List and the WH Fund), which are analysed at

4.2.4. However, there remains a degree of tension between State sovereignty over heritage

sites and the international community’s interest in their preservation,19 which has been a

concern for some involved with implementing the Convention since it was first adopted.20

12 World Heritage Convention preamble para 6. 13 Ibid preamble para 3. 14 Ibid art 6(1). 15 Ibid art 6(3). 16 Stefano Battini, ‘The Procedural Side of Legal Globalisation: The Case of the World Heritage Convention’ (2011) 9(2)

International Journal of Constitutional Law 340, 351. 17 World Heritage Convention preamble para 7. See also World Heritage Convention art 25; Operational Guidelines 2016, UN

Doc WHC.16/01, para 233. 18 Christina Cameron, ‘The Strengths and Weaknesses of the World Heritage Convention’ (1992) 28(3) Nature and Resources

18, 18. 19 Natasha Affolder, ‘Democratising or Demonising the World Heritage Convention?’ (2007) 39 University of Wellington Law

Review (2007) 341, 342. 20 Francesco Francioni, ‘The 1972 World Heritage Convention: An Introduction’ in Francesco Francioni (ed), The 1972 World

Heritage Convention: A Commentary (Oxford University Press, 2008) 3, 5-6.

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It is particularly evident when the Convention bodies (i.e. the Committee and the

Advisory Bodies) and the relevant State party hold different views about a site. As will

be explained in Part 3, this is the case in relation to East Rennell. This thesis argues that

the chasm between the positions of the Convention bodies and the Solomon Islands

government (SIG) concerning the protection of East Rennell must be narrowed so all

parties can work cooperatively, as envisaged by the Convention (see 9.3.1).

4.2.2 The role of non-State actors in the Convention regime

While the Convention addresses the roles of State parties and the international community

in the protection of WH, it makes little reference to the role of non-State actors in the

protection of WH, other than the three international Advisory Bodies: the International

Union for the Conservation of Nature (IUCN), the International Council on Monuments

and Sites (ICOMOS) and the International Centre for the Study of the Preservation and

Restoration of Cultural Property (ICCROM). These bodies hold significant positions

within the regime, which is not surprising given they were involved with the development

of the Convention (see 3.2.1).21 Their role includes making recommendations to the

Committee on WH List nominations and applications for international assistance, and

participating in Committee meetings, albeit in an advisory capacity.22

The lack of references to other non-State actors in the Convention reflects the approach

to the protection of heritage that was most common in industrialised countries when the

treaty was drafted. That approach (often referred to as ‘fortress conservation’) arose from

the conservation movement of the late 1800s, and is characterised by centralised State

ownership, control and management.23 It reflects the Judeo-Christian philosophy that

humans are set apart from nature24 and the belief that the purpose of conservation is to

protect nature from people.25 When the Convention was adopted, fortress conservation

was widely accepted by governments and protected area managers as being appropriate

21 Ana Filipa Vrdoljak, ‘Article 14 The Secretariat and Support of the World Heritage Committee’ in Francesco Francioni (ed),

The 1972 World Heritage Convention: A Commentary, Oxford Commentaries on International Law (Oxford University Press, 2008) 243, 260.

22 World Heritage Convention art 8(3); Operational Guidelines 2016, UN Doc WHC.16/01, para 31. 23 Barbara Lausche, Guidelines for Protected Area Legislation (IUCN, 2011) 79. 24 Phillipe Bourdeau, ‘The Man-Nature Relationship and Environmental Ethics’ (2004) 72 Journal of Environmental

Radioactivity 9-15, 9. See also Grazia Borrini-Feyerabend, Ashish Kothari and Gonzalo Oviedo, Indigenous and Local Communities and Protected Areas: Towards Equity and Enhanced Conservation, Best Practice Protected Area Guidelines 11 (World Conservation Union, 2004) xiv.

25 Jeremy Carew-Reid, ‘Conservation and Protected Areas on South-Pacific Islands: The Importance of Tradition’ (1990) 17(1) Environmental Conservation 29, 34.

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for the preservation of wilderness areas. That approach did not take into account the fact

that humans have impacted ‘natural’ areas for millennia, or the practical need for

collaborative approaches to conservation efforts.26 If regard was paid to local

communities, it was generally only because they were viewed as a threat to the

environment.27

The traditional model for the protection of cultural properties was similarly based on State

control. When the Convention was drafted, most places recognised as having cultural

value were individual historic monuments or buildings, or other places under public

ownership.28 The goal of conservation efforts was often to prolong the life of the physical

fabric of such structures.29 Little attention was paid to the relationship between the

structures and their surroundings, or the associations between the places and local

communities.30

Reflecting these approaches, the Convention imposes responsibility for the protection of

WH on State parties, and contains little recognition of the role or interests of non-State

actors operating at the regional, national or local level.31 This feature can be contrasted

with later treaties, which recognise the involvement of a broader range of groups.32

Importantly, unlike later treaties, the Convention does not require or even encourage State

parties to involve local communities in the identification of heritage places33 or their

protection.34

The impacts of the designation and protection of WH sites on local communities received

little attention for many years.35 However, as will be explored in 4.3, since the Convention

26 Adrian Phillips, ‘Cultural Landscapes: IUCN’s Changing Vision of Protected Areas’ in Cultural Landscapes: The Challenges

of Conservation, World Heritage Papers 7 (UNESCO, 2003) 40, 41. 27 Adrian Phillips, ‘Turning Ideas on their Head: The New Paradigm for Protected Areas’ (2003) 20(2) The George Wright

Forum 8, 14. 28 UNESCO et al, Managing Cultural World Heritage, World Heritage Resource Manual (UNESCO, 2013) 12. 29 Ibid 24. 30 Ibid 12. 31 An exception to this statement is World Heritage Convention art 13(7), which requires the Committee to cooperate with

international and national NGOs with similar objectives to the Convention. This article states that the Committee may call upon public and private bodies and individuals to assist with the implementation of its programmes.

32 See, eg, Convention on the Protection of the Underwater Cultural Heritage, opened for signature 2 November 2001, 2562 UNTS 48 (entered into force 2 January 2009) preamble para 10 (‘Underwater Heritage Convention’); Convention on Biological Diversity, opened for signature 5 June 1992, 1760 UNTS 79 (entered into force 29 December 1993) preamble paras 12-14 (‘Convention on Biological Diversity’); Convention on the Safeguarding of the Intangible Cultural Heritage, opened for signature 17 October 2003, 2368 UNTS 3 (entered into force 20 April 2006) art 11(b) (‘Intangible Cultural Heritage Convention’) preamble para 6.

33 Cf Intangible Cultural Heritage Convention art 11(b). 34 Cf Convention on Biological Diversity art 8(j); Intangible Cultural Heritage Convention art 15. 35 Josephine Gillespie, ‘Legal Pluralism and World Heritage Management at Angkor, Cambodia’ (2012) 14(1&2) Asia Pacific

Journal of Environmental Law 1, 12.

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was adopted the international community’s approach to heritage protection has changed.

Although the Convention has not been amended to reflect these views, the Committee

now encourages State parties to ensure that the rights and roles of local communities are

respected in the identification and conservation of heritage places, which has helped make

the Convention regime a better fit for the Pacific context.

4.2.3 The State parties’ duty to protect World Heritage

This section analyses the terms of Articles 4 and 5, to understand what Pacific Island

States are required to do under the Convention to protect WH under law. The analysis

considers the meaning of the duties of ‘protection’, ‘conservation’, ‘presentation’ and

‘transmission to future generations’ (see (A)) and their relationship to the duty of

‘identification’ (see (B)). It also explains the discretion that State parties have to tailor

their heritage protection measures to their circumstances (see (C)).

(A) The duties of protection, conservation, presentation and transmission of

World Heritage to future generations

Although Article 4 refers to State parties having a duty to protect, conserve, present and

transmit WH to future generations, the Convention does not define those terms. As such,

State parties and the Committee are entitled to interpret them according to their ordinary

meaning, in light of the purpose of the Convention.36 As explained below, the Committee

has not sought to define the terms in the Operational Guidelines and, in practice, it does

not strictly delineate them.

‘Protection’ is a term commonly used in international heritage laws, but it is not defined

consistently or with precision in those laws.37 While the Committee does not define the

term in the Operational Guidelines, it does specify that protection must ensure the

safeguarding of the site’s OUV.38 As was noted in 3.3.1(A), this is one of the reasons why

the OUV criterion upon which a site is inscribed is critical. The criterion not only signifies

36 Convention on the Law of Treaties, opened for signature 23 May 1969, 1155 UNTS 331 (entered into force 27 January 1980)

art 31. 37 See, eg, 1954 Hague Convention which says that the protection of cultural property shall comprise the safeguarding of and

respect for such property (art 2); the International Cultural Heritage Convention defines the broader term of ‘safeguarding’ to mean measures aimed at ensuring the viability of the intangible cultural heritage, including the identification, documentation, research, preservation, protection, promotion, enhancement, transmission, particularly through formal and non-formal education, as well as the revitalisation of the various aspects of such heritage (art 2(3)).

38 Operational Guidelines 2016, UN Doc WHC.16/01, para 96.

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its eligibility to be included in the WH List, it also becomes the focus of the State’s duty

to protect the site.

Like the term ‘protection’, the word ‘conservation’ lacks any clear definition under

international law, and the Committee does not define it in the Operational Guidelines. In

the context of natural heritage, IUCN has defined ‘conservation’ as ‘the in-situ

maintenance of ecosystems and natural and semi-natural habitats and of viable

populations of species in their natural surroundings’.39 In the context of cultural places, it

was defined in the 1994 Nara Document on Authenticity as ‘all efforts designed to

understand cultural heritage, know its history and meaning, ensure its material safeguard

and, as required, its presentation, restoration and enhancement’.40 There is therefore some

overlap between the duties of ‘protection’ and ‘conservation’, both of which aim to ensure

the preservation of the property. However, ‘conservation’ is arguably broader, potentially

encompassing management, restoration and enhancement of the place.41 The concept of

WH management (which is now referred to in the Operational Guidelines) is explored in

4.3.3(C).

The duty to transmit heritage to future generations also overlaps with the duties of

protection and conservation. This duty is a manifestation of the principle of

intergenerational equity,42 which underlies the concept of WH (see 3.2.2). It requires State

parties to protect WH from damage and destruction so that it can be enjoyed by future

generations.

The final duty in Article 4, the duty of ‘presentation’, is also not defined in the

Operational Guidelines. It has been interpreted by the Australian High Court to mean

‘conserving and arranging [the heritage sites] to bring out their potentialities to the best

advantage’, which could involve the provision of lighting, access or other amenities.43

However, the protection of the property ‘is not to be sacrificed by presentation’,44 and

therefore arguably the duty to protect WH prevails over the obligation to present it.

39 Nigel Dudley (ed), Guidelines for Applying Protected Area Management Categories (IUCN, 2008) 9. 40 Nara Document on Authenticity (1994) app 2. See 3.3.2(A)(I) for discussion of the Nara Document. 41 See, eg, Ben Boer and Graeme Wiffen, Heritage Law in Australia (Oxford University Press, 2006) 79-80. 42 This principle says that ‘the present generation should ensure that the health, diversity and productivity of the environment is

maintained or enhanced for the benefit of future generations’: Intergovernmental Agreement on the Environment (1992) s 3.5.2.

43 Commonwealth v Tasmania (1983) 46 ALR 625, 775 (Brennan J). 44 Ibid.

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The Article 4 duties therefore have no clear definitions, and they overlap. The

Operational Guidelines create further uncertainty in that some provisions refer to WH

‘protection’ in isolation,45 others refer to ‘protection and management’,46 and others use

various combinations of the Article 4 duties.47 This inconsistent use of terminology may

reflect a desire for brevity, as it would be unwieldy to specify ‘protection, conservation,

presentation and transmission to future generations’ in each instance. It does however

blur any distinction between the different obligations. In practice, the umbrella term of

‘protection’ is commonly used by the Convention bodies to encompass the obligations of

State parties under Article 4, and that is the approach taken in this thesis.

(B) The duty to identify World Heritage and its relationship with the duty of

protection

In addition to the duty of protection, Article 4 refers to a State party having an obligation

to identify the WH within its territory.48 Once identified, the State party must submit an

inventory of such places (known now as a Tentative List) to the WH Committee.49

The duty to identify WH is closely related to the duty to protect it. A site cannot be

included in the WH List unless it is first identified, documented and nominated by the

State party in which it is located. States are legally required to protect all places falling

within the definitions of cultural heritage and natural heritage in Articles 1 and 2

respectively.50 However, as a State cannot readily protect a place that it has not identified,

its duty is generally considered to be limited to sites on the WH List.51 Consequently,

sites that have not been identified and nominated by the State party will in practice not

fall within the scope of the Convention regime. This means that the identification of WH

is a crucial precursor to protection under the Convention.

45 See, eg, Operational Guidelines 2016, UN Doc WHC.16/01, paras 3(e), 12, 15(c), 15(f), 49, 98, 99, 101, 103. 46 See, eg, ibid paras 8, 78, 96-97. 47 See, eg, ibid paras 1(b), 6, 40 refer to protection and conservation; para 5 refers to identification, protection, conservation and

preservation; paras 7, 15(a) refer to identification, protection, conservation, presentation and transmission to future generations; paras 15(d), 15(g) refer to protection, conservation and presentation; paras 28(h), 40 refer to conservation and management; para 119 refers to protection, conservation, management and presentation; para 60(c) refers to protection, safeguarding and management.

48 See also World Heritage Convention art 3. For analysis of the duty of identification see generally Ben Boer, ‘Article 3 Identification and Delineation of World Heritage Properties’ in Francesco Francioni (ed), The 1972 World Heritage Convention: A Commentary (Oxford University Press, 2008) 85; Kishore Rao, ‘A New Paradigm for the Identification, Nomination and Inscription of Properties on the World Heritage List’ (2010) 16(3) International Journal of Heritage Studies 161.

49 World Heritage Convention art 11(1). 50 Carducci, above n 4, 109; Federico Lenzerini, ‘Article 12 Protection of Properties Not Inscribed on the World Heritage List’

in Francesco Francioni (ed), The 1972 World Heritage Convention: A Commentary (Oxford University Press, 2008) 201, 206; Richardson v Forestry Commission (1988) 77 ALR 237, 245 (Mason CJ and Brennan J).

51 Francioni and Lenzerini, above n 3, 407.

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As noted in 1.2.3, one of the causes of the under-representation of Pacific heritage on the

WH List is the lack of inventories detailing heritage places in the region. While most

Pacific Island States have now submitted Tentative Lists to the Committee,52 significant

gaps in knowledge concerning the region’s heritage remain (see 2.2). Given the link

between the identification and protection of heritage places, efforts to conserve the

region’s heritage places must be accompanied by efforts to identify and document them.

(C) The duty to take active and effective measures to protect World Heritage

Article 5 requires State parties to implement ‘active and effective’ measures to ensure the

protection of WH. Among other things, this provision requires a State party to integrate

WH protection into planning programs,53 to develop services54 and research methods55

for its protection, and to establish centres for training in the conservation of WH.56

Importantly, Article 5 also requires State parties to ‘take the appropriate legal, scientific,

technical, administrative and financial measures necessary’ for the protection of WH.57

This is the basis of a State party’s obligation to protect WH under law.

Articles 4 and 5 give a State party discretion to determine what particular steps it will take

to protect WH. For example, while Article 5 requires a State party to take ‘legal measures’

to protect heritage places, it does not specify the form of legislation that a State must

enact. Indeed, it does not require the State to enact new laws if they are not ‘necessary’.

This feature of the Convention allows a State party to determine how it will comply with

its Convention duties, and is consistent with the approach taken in other treaties signed

during that era.58 It also reflects the broad scope of the concept ‘WH’, and the need for

different actions to protect different types of sites. Some more recent treaties with a

narrower scope are more prescriptive in terms of the measures they require State parties

to undertake.59

52 Tentative Lists have been submitted by Federated States of Micronesia, Fiji, Kiribati, Marshall Islands, Palau, Papua New

Guinea, Samoa, Solomon Islands, Tonga and Vanuatu: Pacific World Heritage Action Plan 2016 – 2020 (2016) 2. 53 World Heritage Convention art 5(a). 54 Ibid art 5(b) 55 Ibid art 5(c) 56 Ibid art 5(e). 57 Ibid art 5(d). 58 See, eg, the Convention on Wetlands of International Importance especially as Waterfowl Habitat, opened for signature 2

February 1971, 996 UNTS 245 (entered into force 21 December 1975). This Convention imposes broad obligations on State party only (art 4).

59 See, eg, Convention on Biological Diversity art 8; Underwater Heritage Convention arts 10, 12.

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As well as not prescribing any particular steps that a State party must take to protect WH,

both Articles 4 and 5 are couched in qualifying terms. Article 4 refers to a State party

doing ‘all it can’ to protect heritage, ‘to the utmost of its own resources’. Similarly, Article

5 says that a State party ‘shall endeavour’, ‘in so far as possible’, and ‘as appropriate for

each country’ to take the specified measures. While these qualifications do not give States

discretion as to whether to comply with the obligations,60 they do allow States flexibility

in the manner of compliance.61 Factors that may affect their response include economic

considerations,62 the financial and administrative capacity of the State, its geographical

size, the date it signed the Convention,63 the volume and significance of its cultural and

natural heritage, whether the State has existing duties to identify and protect heritage

under national law,64 political and cultural considerations, and the ownership of the

heritage property.65

As such, while a top-down State-centric model of heritage protection was prevalent in the

era when the Convention was drafted (see 4.2.2), State parties are not legally obliged to

take that approach. This is generally a positive feature of the Convention for Pacific Island

States, as it allows them to adopt measures appropriate to their resource capacities, their

plural legal systems, and the land tenure of their heritage places. However, the corollary

is that the Convention itself provides little guidance to State parties on how to protect

WH.

As will be explained further in 4.3, the Operational Guidelines now contain some

guidance on what the Committee considers to be the appropriate approach to WH

protection. In addition, manuals prepared by the Advisory Bodies and others aim to assist

States to develop and implement management systems for WH sites (and other important

heritage places) and provide some case study examples.66 However, the manuals are

necessary high level and detailed guidelines concerning what constitutes an ‘appropriate

60 Commonwealth v Tasmania (1983) 46 ALR 625, 698 (Mason J). 61 Richardson v Forestry Commission (1988) 77 ALR 237, 245 (Mason CJ and Brennan J). 62 Ibid 242 (Mason CJ and Brennan J). 63 Forrest, above n 3, 243. 64 Carducci, above n 4, 113-114. 65 Boer and Wiffen, above n 40, 72. 66 See, eg, IUCN, Management Planning for Natural World Heritage Properties: A Resource Manual for Practitioners (IUCN,

2008); Marc Hockings et al, Enhancing Our Heritage Toolkit: Assessing Management Effectiveness of Natural World Heritage Sites, World Heritage Papers 23 (IUCN, 2008); UNESCO et al, above n 28; UNESCO et al, Managing Natural World Heritage, World Heritage Resource Manual (UNESCO, 2012); Thomas Lee and Julie Middleton, Guidelines for Management Planning of Protected Areas (IUCN, 2003); Grazia Borrini-Feyerabend et al, Governance of Protected Areas: From Understanding to Action, Best Practice Protected Area Guidelines Series 20 (IUCN, 2013).

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legal measure’ for the purposes of Article 5 of the Convention remain lacking.67 The

Pacific Island States may benefit from more guidance in this area, particularly those

charged with protecting sites under customary tenure (see 9.2).

4.2.4 The structural elements of the regime: The Committee, the List and the Fund

(A) The World Heritage Committee

The WH Committee, an executive decision-making body established under Article 8 of

the Convention, effectively represents the common interest of State parties in the

preservation of WH.68 As explained in the sections below, it plays a central role in the

Convention regime through its administration of the WH List and the WH Fund. The fact

that all substantive decision-making powers are given to the Committee as opposed to the

General Assembly of State parties, is a distinguishing feature of the Convention.69 It

means that the composition of the Committee can significantly influence the operation of

the regime.

The Committee comprises 21 State parties, elected by the General Assembly of State

parties to the Convention.70 Its work is co-ordinated by the Bureau, which comprises

seven State parties on the Committee.71 It is also assisted by the WH Centre, which has

been the Secretariat for the Convention since 1992, and is responsible for the day to day

management of the Convention.72

Although the Convention requires that elections to the Committee ensure an ‘equitable

representation of the different regions and cultures of the world’,73 to date Pacific

Islanders have not been well represented. As the main decision-making body in relation

to WH, many States seek membership of the Committee.74 New Zealand was a member

67 UNESCO et al, Managing Natural World Heritage, above n 66, 35. 68 Tullio Scovazzi, 'Articles 8 - 11 World Heritage Committee and World Heritage List' in Francesco Francioni (ed), The 1972

World Heritage Convention: A Commentary (Oxford University Press, 2008) 147, 149. 69 Bruno S Frey and Lasse Steiner, ‘World Heritage List: Does it Make Sense?’ (2011) 17(5) International Journal of Cultural

Policy 555, 557. 70 World Heritage Convention art 8(1). The current members of the WH Committee are Angola, Azerbaijan, Burkina Faso,

Croatia, Cuba, Finland, Indonesia, Jamaica, Kazakhstan, Kuwait, Lebanon, Peru, Philippines, Poland, Portugal, Republic of Korea, Tunisia, Turkey, United Republic of Tanzania, Vietnam, Zimbabwe.

71 Operational Guidelines 2016, UN Doc WHC.16/01, para 19. The current members of the Bureau are Angola, Kuwait, Peru, Poland, Portugal, Republic of Korea, United Republic of Tanzania.

72 World Heritage Convention art 14; Operational Guidelines 2016, UN Doc WHC.16/01, paras 27-29. 73 World Heritage Convention art 8(2). 74 Lynn Meskell, Claudi Liuzza and Nicholas Brown, ‘World Heritage Regionalism: UNESCO from Europe to Asia’ (2015) 22

International Journal of Cultural Property 437, 451.

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between 2003 and 2007,75 and Australia has served several terms,76 but no Pacific Island

State has ever been a member.77

One reason for this is that the Pacific Island States only became signatories to the

Convention relatively recently. Furthermore, it is debatable whether any such State has

sufficient human and financial resources to serve effectively on the Committee.78 The

implications of the lack of Pacific representation must however be recognised. It may

explain why for many years the Committee interpreted ‘cultural heritage’ in a manner

that effectively excluded places of significance to Pacific Islanders (see 3.3.2(A)). It may

also explain why the Committee traditionally favoured State-centric approaches to

heritage protection, which are often inappropriate in the Pacific (see 4.3).

It is not suggested here that the Committee has deliberately sought to exclude the Pacific

from the Convention regime, but simply that its decision-making has been influenced by

the perceptions and values of the mainly industrialised States that dominated its

membership. In this regard, it is notable that the Committee adopted ‘enhancing the role

of communities’ as one of its strategic objectives (discussed at 4.3.2) while Tumu Te

Heuheu, paramount chief of Ngati Tuwharetoa (Aotearoa/New Zealand) was its chair.

The recognition of this objective was significant for the Pacific, and demonstrates the

impact a Pacific voice within the Committee can have on its approach to WH protection.

The Committee’s adoption of the Global Strategy for a Representative, Balanced and

Credible World Heritage List (the ‘Global Strategy’) brought to the fore the need for the

Convention regime to adapt to better fit the Pacific context. In addition, developments

such as the Pacific 2009 World Heritage Programme and The Pacific Appeal have helped

to highlight the views of Pacific Islanders to the Committee, and have contributed to its

changing approach to WH and its protection.79 Research on cultural heritage in the Pacific

in the last two decades has also actively contributed to this.80 To ensure that the regime

75 UNESCO, New Zealand <http://whc.unesco.org/en/statesparties/nz> . 76 UNESCO, Australia <http://whc.unesco.org/en/statesparties/au>. Australia was a member of the Committee in 1976-1983,

1983-1989, 1995-2001 and 2007-2011. 77 Vanuatu and Palau have applied for membership, but their bids were unsuccessful. 78 Bertacchini and Saccone have found that developed countries have greater capacity to gain membership to the WH Committee

than developing countries: See Enroci E Bertacchini and Donatella Saccone, ‘Toward a Political Economy of World Heritage’ (2012) 36(4) Journal of Cultural Economics 327, 334.

79 The Global Strategy, the Pacific 2009 World Heritage Programme and the Pacific Appeal are discussed in 1.2. 80 Christian Reepmeyer et al, ‘Selecting Cultural Sites for the UNESCO World Heritage List: Recent Work in the Rock Islands

– Southern Lagoon Area, Republic of Palau’ in Jolie Liston, Geoffrey Clark and Dwight Alexander (eds), Pacific Island Heritage: Archaeology, Identity and Community (ANU E Press, 2011) 85, 86.

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continues to evolve to meet the views and aspirations of Pacific Islanders, efforts to

inform the Committee of the Pacific perspective must continue, even if no Pacific Island

State becomes a formal member (see 9.2.4).

(B) The World Heritage List

The WH List is the most well-known component of the Convention regime. It is a list of

sites that the WH Committee has found meet the definitions of cultural heritage and

natural heritage in Articles 1 and 2 of the Convention respectively, and has decided to

include in the list on that basis.81 The Committee is responsible for defining the criteria

by which sites may be inscribed on the WH List,82 and determining whether a nominated

site should be listed.83 As noted in 4.2.3(B), despite the legal scope of Article 4, generally

only sites on the WH List are considered to be subject to the State parties’ duty to

protect.84 Thus, the Committee’s decisions concerning inscriptions on the WH List to a

large extent delineate the scope of the regime.

State parties also play an important role in the listing process. The Committee can only

inscribe a site on the WH List if it has been nominated by the State party within whose

territory the site is located. As such, the consent of that State party is required for the site

to be brought within the scope of the Convention regime. This requirement is an example

of the delicate balance between respect for national sovereignty and the international

community’s interest in WH protection that the Convention is trying to achieve (see

4.2.1).

Importantly, no other group or individual who may have an interest in the preservation of

a heritage site (including customary landowners) can nominate the site for WH Listing.

Thus, while the conservation of Pacific heritage is often highly dependent on local action,

the Convention regime can only be used as the framework for the protection of such sites

with the consent and involvement of the State party, at least at the nomination stage. As

noted in 1.2.3, to date the rate of nomination of Pacific sites has been relatively low, and

81 World Heritage Convention art 11(2). 82 Ibid art 11(5). 83 Ibid art 11(2). 84 Francioni and Lenzerini, above n 3, 407.

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there is a continuing need to address the challenges that Pacific States face in the

nomination of sites.

(C) The World Heritage Fund

In addition to determining nominations for inclusion in the WH List, the Committee is

responsible for assessing applications by State parties for international assistance.85 As

the primary responsibility for the protection of WH rests with the State party in which the

heritage is located,86 a State is not automatically entitled to receive any assistance through

the Convention regime. Rather, it must first submit a request to the Committee, which

will determine the request based on the evaluation criteria in the Operational

Guidelines.87 International assistance is primarily funded through the WH Fund,88 which

comprises voluntary and compulsory contributions from State parties and money from

other sources.89

Pacific Island States fall within several of the Committee’s priority areas for international

assistance.90 These include requests from least developed countries and small island

developing states91 and requests that support the Committee’s strategic objectives,92

including the Global Strategy. However, the annual budget of the WH Fund is $US3

million,93 which is very small considering there are over 1,000 listed WH sites. Therefore,

although international cooperation is a principle underpinning the Convention regime (see

4.2.1), the Committee’s capacity to fund projects designed to help Pacific Island States

meet their protection obligations is limited.

Another limitation of the international assistance system is that only State parties can

apply for assistance.94 This is logical, given that the Convention imposes the duty to

protect WH on State parties. However, in practice it means that groups such as customary

85 World Heritage Convention art 13(3). 86 Ibid art 4. 87 Ibid art 13(3); Operational Guidelines 2016, UN Doc WHC.16/01, annex 9. 88 World Heritage Convention chapter IV. 89 Ibid art 15(3). See generally, Jehanne Phares and Cynthia Guttman, Investing in World Heritage: Past Achievements, Future

Ambitions – A Guide to International Assistance, World Heritage Papers 2 (UNESCO, 2002). 90 World Heritage Convention art 13(4); Operational Guidelines 2016, UN Doc WHC.16/01, paras 236-239. 91 Operational Guidelines 2016, UN Doc WHC.16/01, para 239(b). 92 Ibid paras 238, 239(e). 93 UNESCO, World Heritage Fund <http://whc.unesco.org/en/world-heritage-fund/>. 94 World Heritage Convention art 13(1); Operational Guidelines 2016, UN Doc WHC.16/01, para 233. An exception to this is

that the Committee can provide international assistance to national or regional centres for the training of staff in heritage identification and protection: World Heritage Convention art 23.

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landowners, non-government organisations and provincial governments, who may be

directly involved with the conservation of a WH site, are at the behest of the relevant

State party to access assistance through the Convention regime. If the State party does not

apply for assistance, the Committee cannot mobilise funds from the WH Fund to help

such groups conserve the site.

The case of Solomon Islands shows that State parties do not always apply for international

assistance, despite the critical need for it. To date, Solomon Islands has applied for (and

thus received) relatively little funding through the Convention regime,95 which has been

a point of frustration for some Committee members. For example, the author observed

that at the 2015 WH Committee annual meeting in Bonn, Germany, the Turkish delegate

on the Committee stated:

‘Despite all the offers of money and technical help there is no response from the [Solomon Islands] State party. We are wondering why the State party is not cooperating? Some countries need assistance that they can’t get. This country gets all the assistance, but do not try and receive it.’

The SIG may have submitted few requests for assistance because it lacks the resources

and/or capacity to conduct the detailed scientific, economic and technical studies that

must precede an application,96 or to administer the assistance once it is received.

Moreover, while Article 22 of the Convention allows international assistance to be

granted for a broad range of activities (including research, the provision of experts and

labour, the training of staff, and the supply of equipment),97 it does not necessarily extend

to all initiatives that the State prioritises. For example, it does not allow for the funding

of alternative livelihood projects, which are arguably necessary to ensure the long-term

protection of East Rennell (see chapters 7 and 8). This may be one of the reasons why

Pacific Island States continue to call for the establishment of a permanent Pacific WH

Fund.98

Furthermore, as this research will show, the protection of East Rennell is interrelated with

a range of economic, social and environmental issues. While one-off grants from the WH

Fund for specific projects may be of some benefit, addressing the full range of issues that

95 Solomon Islands received $US26 350 in 2006 for an exchange visit between the East Rennell WH site and Tetepare island,

and $US29 985 in 2012 for a marine survey of East Rennell: UNESCO, Solomon Islands: International Assistance (2006) <http://whc.unesco.org/en/statesparties/sb/assistance/>.

96 World Heritage Convention arts 21(1); 24; Operational Guidelines 2016, UN Doc WHC.16/01, para 243, annex 8. 97 World Heritage Convention art 22; Operational Guidelines 2016, UN Doc WHC.16/01, para 241. 98 See, eg, Pacific World Heritage Action Plan 2016 – 2020 (2016) para 24.

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threaten East Rennell is likely to require a larger and longer-term investment than the

Committee can currently provide. As such, the SIG and others involved with the

protection of East Rennell will require assistance from donors and organisations outside

the Convention regime to safeguard the site’s OUV.

4.3 The World Heritage Committee’s approach to the protection of

World Heritage

The previous section explored the protection regime as established by the Convention

text. It showed that the text creates a framework, and leaves the Committee and the State

parties with discretion to determine how the Convention is to be implemented. This

section explores the Committee’s changing approach to WH protection, as evidenced

primarily through its amendment of the Operational Guidelines. The Committee’s views

on how WH sites should be protected are significant because it has substantial decision-

making powers under the Convention, including the power to inscribe sites on the WH

List and to administer the WH Fund. In addition, the Committee can influence the

implementation of the Convention by State parties, through the Operational Guidelines

and its resolutions. This section focuses on three developments in the Committee’s

approach to WH protection of importance to the Pacific. These concern the relationship

between heritage protection and sustainable development (4.3.1), the rights and roles of

local communities in heritage protection (4.3.2), and customary protection of WH sites

(4.3.3). As this analysis will demonstrate, the Committee’s contemporary approach is

more appropriate for the Pacific context than earlier top-down methods, but significant

challenges remain.

4.3.1 The relationship between sustainable development and the protection of

heritage

As noted in 4.2.2, when the Convention was adopted, wilderness areas and cultural

properties in industrialised societies were most commonly protected through top-down

approaches that sought to preserve the sites as ‘islands’ isolated from the impacts of

human activities. While that approach is still used effectively in many places today,99

99 Barbara Lausche, Guidelines for Protected Area Legislation (IUCN, 2011) 76.

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since the Convention was signed a new ‘conservation paradigm’ for heritage protection

has emerged.100 Under this new paradigm, efforts to conserve the natural environment

include a wider range of actors, are approached at a broader scale, and are pursued

alongside social and economic objectives.101 Similarly, it is now widely recognised that

cultural properties cannot be protected as museum pieces, separated from local

communities and the broader economic and social changes occurring around them,102 so

a more holistic, integrated approach to their preservation is required.103

The emergence of this new conservation paradigm was triggered in part by the growing

recognition of the need for ‘sustainable development’, often defined as development that

‘meets the needs of the present without compromising the ability of future generations to

meet their own needs’.104 This concept became widely accepted at the international level

in the 1980s, through the publication of documents such as the World Conservation

Strategy105 and the Brundtland Report,106 which explored the relationship between

development and environmental protection. The signature of the Rio Declaration,107

Agenda 21108 and the Convention on Biological Diversity109 at the 1992 United Nations

Conference on Environment and Development (UNCED) firmly embedded the concept

under international law. Achieving sustainable development remains a pillar of

international policy, as evidenced by the United Nations General Assembly’s adoption of

Transforming our World: the 2030 Agenda for Sustainable Development in 2015.110 That

document arguably does not sufficiently acknowledge the contribution of heritage

protection to the achievement of sustainable development. It does however note the need

to ‘strengthen efforts to protect and safeguard the world’s cultural and natural heritage’.111

As the concept of sustainable development only became widely used in the 1980s, it is

not referred to in the Convention. The Convention does however reflect some of its

100 UNESCO et al, above n 28, 12-15; Gonzalo Oviedo and Tatjana Puschkarsky, ‘World Heritage and Rights-Based Approaches

to Nature Conservation’ (2012) 18(3) International Journal of Heritage Studies, 285, 287; Phillips, above n 27, 19-20. 101 Phillips, above n 27, 19-20; Lausche, above n 99, 142; Borrini-Feyerabend, Kothari and Oviedo, above n 24, 2. 102 UNESCO et al, above n 28, 13. 103 Ibid 15. 104 World Commission on Environment and Development, Our Common Future, UN Doc A/42/427 (1987) annex cl 27

(frequently referred to as the Brundtland Report after Gro Harlem Brundtland, Chairman of the Commission). 105 IUCN et al, World Conservation Strategy (1980). 106 World Commission on Environment and Development, above n 104. 107 Rio Declaration on Environment and Development, Report of the United Nations Conference on Environment and

Development, UN Doc A/CONF.151/6/Rev.1 (1992) (‘Rio Declaration’). 108 Agenda 21, Report of the UNCED, I, UN Doc. A/CONF.151/26/Rev.1 (1992) (‘Agenda 21’). 109 Convention on Biological Diversity, opened for signature 5 June 1992, 1760 UNTS 79 (entered into force 29 December 1993)

(‘Convention on Biological Diversity’). 110 Transforming Our World: The 2030 Agenda for Sustainable Development, UNGA Res A/RES/70/L.1, UN GAOR, 70th sess,

UN Doc A/RES/70/1 (21 October 2015) (‘Transforming Our World’). 111 Ibid 22.

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principles. For example, Article 4 requires State parties to ensure the transmission of

heritage to future generations, in accordance with the notion of intergenerational equity

that lies at the heart of sustainable development.112 In addition, Article 5 requires State

parties to adopt a general policy which aims to give WH a function in the life of the

community and to integrate the protection of that heritage into comprehensive planning

programs.113 This provision therefore supports holistic approaches to conservation,

consistent with sustainable development.114

Despite these linkages, it took many years for the Committee to enshrine the principles

of sustainable development in its Operational Guidelines. A milestone in this process was

the Committee’s adoption of the Budapest Declaration in 2002.115 That Declaration

recognises the need to ‘ensure an appropriate and equitable balance between

conservation, sustainability and development, so that World Heritage properties can be

protected through appropriate activities contributing to the social and economic

development and the quality of life of our communities’.116 More recently, the General

Assembly of State parties adopted the WH Sustainable Development Policy,117 following

the endorsement of a similar document by the Committee.118 The adoption of that policy

was a clear acknowledgement of the need for heritage conservation objectives to be

promoted ‘within a broader range of economic, social and environmental values and

needs encompassed in the sustainable development concept’.119 The policy contains

provisions reflecting the various dimensions of sustainable development, namely

environmental sustainability, inclusive social development, inclusive economic

development, and fostering peace and security.120

These developments were particularly significant for Pacific Island States. As was

explained in chapter 2, Pacific heritage often comprises landscapes and seascapes of

112 Rio Declaration, UN Doc A/CONF.151/6/Rev.1, principle 3; Transforming Our World, UN Doc A/RES/70/1, preamble para

6. 113 World Heritage Convention art 5(a). 114 Rio Declaration, UN Doc A/CONF.151/6/Rev.1, principle 4; Transforming Our World, UN Doc A/RES/70/1, preamble para

7. 115 Budapest Declaration on World Heritage, WHC Res 26 COM 9, WHC 26th sess, UN Doc WHC-02/CONF.202/25 (1 August

2002) 6 (‘Budapest Declaration’). 116 Ibid para 3(c). 117 Policy for the Integration of a Sustainable Development Perspective into the Processes of the World Heritage Convention,

WHC GA Res 20 GA 13, 20th sess, UN Doc WHC-15/20.GA/15 (20 November 2015) 7 (‘WH Sustainable Development Policy’).

118 WHC Res 39 COM 5D, WHC 39th sess, UN Doc WHC-15/39.COM/19 (8 July 2015) 7; World Heritage and Sustainable Development, WHC 39th sess, UN Doc WHC-15/39.COM/5D (15 May 2015) annex.

119 WH Sustainable Development Policy, UN Doc WHC-15/20.GA/15, para 2. 120 Ibid paras 13-33.

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continuing cultural significance to the areas’ inhabitants and owners. For example, Chief

Roi Mata’s Domain in Vanuatu is a cultural landscape representing the continuing Pacific

chiefly system and respect for customary authority.121 In addition, many Pacific Islanders

live subsistence lifestyles, and are highly dependent on their natural resources for their

livelihoods. For example, the Rock Islands Southern Lagoon WH site in Palau is utilised

by Palauans for subsistence harvesting of fish and fruit bats.122 Similarly, the customary

owners of East Rennell depend on fish from the lake and sea, and resources from the

forest within the WH site to support their livelihoods.123 An approach to heritage

protection that involves the exclusion of all human activity from the heritage place and/or

which does not recognise the cultural values associated with the natural environment, is

unlikely to be appropriate in the Pacific. Consequently, the Committee’s efforts to

integrate WH protection into the broader framework of sustainable development could

make the Convention regime a better fit for the Pacific. As explained below however,

more could be done to ensure that the Committee’s change in approach has practical

impact.

The Operational Guidelines now refer to sustainable development, but they do not fully

reflect the Budapest Declaration or the WH Sustainable Development Policy. For

example, the Operational Guidelines state that the protection of WH is a significant

contributor to sustainable development,124 and its principles should be integrated into

heritage management systems.125 In addition, they acknowledge that WH properties may

support a variety of uses that are ecologically and culturally sustainable and which may

contribute to the quality of life of local communities.126 However, they do not refer to the

need for State parties to seek an equitable balance between conservation, sustainability

and development, as stated in the Budapest Declaration and the WH Sustainable

Development Policy.127 They also do not refer to the need to protect and promote

environmental, social, economic and cultural rights in the implementation of the

Convention.128 The Operational Guidelines should be reviewed to identify the

121 Republic of Vanuatu, Chief Roi Mata’s Domain – Nomination by the Republic of Vanuatu for Inscription on the World

Heritage List (2007) 56. 122 Republic of Palau, The Rock Islands Southern Lagoon Nomination for Inscription on the World Heritage List (2012) 22-23. 123 Elspeth J Wingham, Nomination of East Rennell, Solomon Islands by the Government of Solomon Islands for Inclusion in the

World Heritage List Natural Sites (1997) 27. 124 Operational Guidelines 2016, UN Doc WHC.16/01, para 6. 125 Ibid para 132(5). 126 Ibid para 119. 127 Budapest Declaration, UN Doc WHC-02/CONF.202/25, para 3(c); WH Sustainable Development Policy, UN Doc WHC-

15/20.GA/15, paras 1, 9. 128 WH Sustainable Development Policy, UN Doc WHC-15/20.GA/15, para 7.

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amendments needed to fully embed the principles of sustainable development in the

Convention regime. Indeed, following the adoption of the WH Sustainable Development

Policy in 2015, the Committee foreshadowed that such changes may be required.129

In addition, the Committee needs to ensure that its resolutions concerning WH sites reflect

the WH Sustainable Development Policy. As will be explained in later chapters, the

Committee has repeatedly requested that Solomon Islands address the threats to East

Rennell by banning logging and mining on the island, regulating the taking of species,

developing a new management plan and implementing heritage protection legislation.

There has been little acknowledgement in its resolutions of the critical role of local people

in decision-making concerning WH protection nor their right to economic and social

development. This may be contributing to the SIG’s failure to comply with those

resolutions. It is argued in this thesis that if cooperation between the Committee and the

SIG is to improve, future Committee resolutions must more strongly reflect the principles

of sustainable development (see 9.3.1(A)).

4.3.2 The rights and roles of local communities in heritage protection

Since the Convention was adopted, it has become increasingly accepted that a broad range

of actors can contribute to heritage protection, including local communities.130 The

emergence of the notion of sustainable development as well as increasing recognition of

the rights of Indigenous peoples,131 have contributed to this change.

The near universal acceptance of the concept of ‘sustainable development’ has

highlighted the need for more holistic approaches to heritage protection, and drawn

attention to the need for effective systems of governance, involving participatory and

multi-stakeholder approaches.132 This is based on increasing recognition that local

129 The World Heritage Centre and the Advisory Bodies have foreshadowed that such changes will be required: See, eg, World

Heritage and Sustainable Development, WHC 39th sess, UN Doc WHC-15/39.COM/5D (15 May 2015) para 9, which states that once the policy is adopted, proposals for specific changes to the Operational Guidelines should be developed.

130 It is recognised that in some contexts there are critical differences between Indigenous people and local communities. However, for convenience, in this thesis the term ‘local communities’ is used broadly to encompass Indigenous people, unless the context dictates otherwise.

131 There is no agreed definition of Indigenous people under internal law. For discussion, see, eg, Benedict Kingsbury, ‘’Indigenous Peoples’ in International Law: A Constructivist Approach to the Asian Controversy’ (1998) 92 American Journal of International Law 414.

132 UNESCO et al, above n 28, 13.

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people’s ‘knowledge, perceptions, and cosmologies’ are important to managing heritage

places,133 as well as ethical and moral concerns.

The important role of local people in achieving sustainable development is reflected in

several documents adopted at the UNCED conference. For example, the Rio Declaration

recognised the vital role of Indigenous people and local communities in environmental

management because of their knowledge and traditional practices;134 the Convention on

Biological Diversity called on States to maintain the knowledge, innovations and

practices of Indigenous and local communities relevant for the conservation of

biodiversity;135 and Agenda 21 devoted a chapter to exploring mechanisms for

strengthening the role of Indigenous people and their communities.136 The concept of

sustainable development therefore clearly supports more decentralised approaches to

heritage protection than existed under the traditional State-centric model.

The role of Indigenous peoples in heritage protection has gained particular attention,

reflecting increasing international acknowledgement of their rights. This is demonstrated

by the establishment of international bodies such as the United Nations’ Working Group

on Indigenous Populations137 and the Permanent Forum on Indigenous Issues.138 It is also

evident from the adoption of international instruments including the International Labour

Organisation’s Indigenous and Tribal Peoples Convention 1989 (ILO 169)139 and the

United Nations Declaration on the Rights of Indigenous People (UNDRIP).140

ILO 169 is the only binding international law concerning the rights of Indigenous peoples.

Among other things, it confirms their right to have their cultural values and practices

protected,141 to participate in the formulation of development plans that may affect

133 Matthew Lauer and Shankar Aswani, ‘Indigenous Ecological Knowledge as Situated Practices: Understanding Fishers’

Knowledge in the Western Solomon Islands (2009) 111(3) American Anthropologist 317, 317. 134 Rio Declaration, UN Doc A/CONF.151/6/Rev.1, principle 22. 135 Convention on Biological Diversity art 8(j). 136 Agenda 21, UN Doc. A/CONF.151/26/Rev.1, ch 26. 137 The Working Group on Indigenous Populations was established in 1982 as a subsidiary organ to the Sub-Commission on the

Promotion and Protection of Human Rights: See United Nations Office of the High Commissioner (UN-OHC), Mandate of the Working Group on Indigenous Populations <http://www.ohchr.org/EN/Issues/IPeoples/Pages/MandateWGIP.aspx>. The Working Group has been discontinued and replaced by the Expert Mechanism on the Rights of Indigenous Peoples in 1997: See United Nations Office of the High Commissioner (UN-OHC), Expert Mechanism on the Rights of Indigenous Peoples <http://www.ohchr.org/EN/Issues/IPeoples/EMRIP/Pages/EMRIPIndex.aspx>.

138 The Permanent Forum on Indigenous Issues was established in 2000 and is an advisory body to the United Nations’ Economic and Social Council: See United Nations Division for Social Policy and Development, Permanent Forum <https://www.un.org/development/desa/indigenouspeoples/unpfii-sessions-2.html>.

139 Convention (No. 169) Concerning Indigenous and Tribal Peoples in Independent Countries, opened for signature 27 June 1989, 1650 UNTS 383 (entered into force 5 September 1991) (‘ILO 169’).

140 United Nations Declaration on the Rights of Indigenous Peoples, GA Res 61/295, UN GAOR, 61st sess, 107th plen mtg, Supp No 49, UN Doc A/RES/61/295 (13 September 2007) (‘UNDRIP’).

141 ILO 169 art 5.

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them,142 and to the lands traditionally occupied by them.143 While it has limited direct

application to the Pacific Island States,144 its adoption was a significant milestone in the

growing appreciation of the rights of Indigenous people at the international level. This

was solidified by the United Nations General Assembly’s adoption of UNDRIP in 2007.

Although UNDRIP is not binding, many of its provisions reflect principles of customary

international law and principles enshrined in human rights instruments.145 Thus, it is an

emerging standard for the treatment of Indigenous people.

Top-down conservation measures involving stringent restrictions on Indigenous peoples’

access to and use of their lands, and measures developed without the full involvement of

the affected peoples may be inconsistent with the provisions of UNDRIP. In contrast,

more localised approaches to conservation find support in UNDRIP as expressions of

Indigenous peoples’ self-governance, decision-making and autonomy,146 which are rights

guaranteed by the Declaration.147 Such approaches may also be a means for Indigenous

people to maintain their cultures, livelihoods and identities.148 As such, they may be

consistent with other rights guaranteed by UNDRIP including the right of Indigenous

people to maintain their spiritual relationship with the land,149 their right to practice their

customs and traditions,150 and their right to the land they traditionally owned and

occupied.151 UNDRIP also guarantees procedural rights, including the right of Indigenous

people to participate in decision-making that affects them,152 which supports their full

involvement in efforts to conserve their lands.

142 Ibid art 7(1). 143 Ibid art 16. 144 Of the Pacific Island States (as defined in this research), only Fiji has signed it. Furthermore, under art 1, the Convention

defines Indigenous peoples to include tribal peoples in independent countries whose social cultural and economic conditions distinguish them from other sections of the national community, and descendants of people who inhabited the area at the time of colonisation (ILO 169 art 1). In most Pacific Island States, Indigenous peoples comprise the majority of the population. Therefore, it is arguably not aimed at indigenous populations in such States: See Erika Techera, ‘Samoa: Law, Custom and Conservation’ (2006) 10 New Zealand Journal of Environmental Law 361, 367.

145 Beatriz Barreiro Carril, ‘‘Indigenous Peoples’ Participation in Decision-Making in the Context of World Heritage Sites: How International Human Rights Law Can Help?’ (2016) 7(2-3) The Historic Environment: Policy and Practice 224, 227; Erika Techera, Strengthening International Law to Address the Needs of Legally Pluralist Nations, Macquarie Law Working Paper 2010-02 (Macquarie University, 2010) 16.

146 Stan Stevens, ‘Implementing the UN Declaration on the Rights of Indigenous Peoples and International Human Rights Law through the Recognition of ICCAs’ (2010) 17 Policy Matters 181, 186.

147 UNDRIP, UN Doc A/RES/61/295, art 4. 148 Stevens, above n 146, 186. 149 UNDRIP, UN Doc A/RES/61/295, art 25. 150 Ibid arts 11(2), 14, 34. 151 Ibid arts 26, 32. 152 Ibid arts 9, 10, 11(2), 18, 19, 25, 27, 32.

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In the past, WH was often something that was imposed on local populations,153 and the

impacts of WH listing on communities received little attention.154 However, as instances

where the rights of local communities have been abused in the implementation of the

Convention became better known,155 some academics have advocated for greater

attention to be paid to such issues.156 In addition, many international organisations have

called on the Committee to amend the Operational Guidelines to be consistent with

UNDRIP.157

The Committee has responded, to some extent.158 A milestone in the Committee’s

changing approach was its inclusion of ‘enhancing the role of communities’ as one of its

five strategic objectives,159 the other four being credibility, conservation, capacity-

building and communication.160 The Committee decided to include the fifth strategic

objective in ‘recognition of the critical importance of involving indigenous, traditional

and local communities in the implementation of the Convention.’161 As noted in 4.2.4(A),

153 Naomi Deegan, ‘The Local-Global Nexus in the Politics of World Heritage: Space for Community Development?’ in Marie-

Theres Albert, Marielle Richon, Marie José Viñals and Andrea Witcomb (eds), Community Development through World Heritage, World Heritage Papers 31 (UNESCO, 2012) 77, 80.

154 Gillespie, above n 35, 12. 155 For example, the Kenya Lake System in the Great Rift Valley was listed with little effective consultation with the area’s

traditional owners, the Endorois people. Many of these traditional owners had been previously relocated from the area to create a wildlife reserve and tourist facilities. The African Commission on Human and Peoples Rights found that the listing violated the Endorois peoples’ right to development. For discussion see Peter Bille Larsen, World Heritage and Evaluation Processes Related to Communities and Rights: An Independent Review (IUCN, 2012) 19-20; Harry Jonas et al, An Analysis of International Law, National Legislation, Judgements and Institutions as they Interrelate with Territories and Areas Conserved by Indigenous Peoples and Local Communities (Natural Justice, 2012) 99-101. Rights violations have also been reported at many other World Heritage sites, such as the Chitwan National Park World Heritage site in Nepal (see United Nations Humans Rights Council, Report by the Special Rapporteur on the Situation of Human Rights and Fundamental Freedoms of Indigenous People, James Anaya, Addendum: report on the situation of indigenous peoples in Nepal, A/HRC/12/34/Add.3 (20 July 2009) paras 35-37), and Lhasa, Tibet (see Amund Sinding-Larsen, ‘Lhasa Community, World Heritage and Human Rights’ (2012) 18(3) International Journal of Heritage Studies 297. For other case studies concerning human rights issues at World Heritage sites see Peter Bille Larsen (ed), World Heritage and Human Rights: Lessons from the Asia-Pacific and Global Arena (Routledge, forthcoming).

156 See, eg, Robert James Hales et al, ‘Indigenous Free Prior Informed Consent: A Case for Self Determination in World Heritage Nomination Processes’ (2013) 19(3) International Journal of Heritage Studies 270; Stefan Disko, Indigenous Peoples’ Rights in the Context of the World Heritage Convention: The Role of IUCN (IUCN, 2011) <https://www.iucn.org/content/indigenous-peoples-rights-context-world-heritage-convention-%E2%80%93-role-iucn>; Eman Assi, ‘World Heritage Sites, Human Rights and Cultural Heritage in Palestine’ (2012) 18(3) International Journal of Heritage Studies 316; Jukka Jokilehto, ‘Human Rights and Cultural Heritage: Observations on the Recognition of Human Rights in the International Doctrine’ (2012) 18(3) International Journal of Heritage Studies 226.

157 See, eg, Report of the Expert Mechanism on the Rights of Indigenous Peoples on its Fifth Session (Geneva, 9 – 13 July 2012), Human Rights Council, 21st sess, UN Doc A/HRC/21/52 (17 August 2012) 7; Report on the Twelfth Session (20 – 31 May 2013), United Nations Permanent Forum on Indigenous Issues, UN ESCOR, 12th sess, UN Doc E/2013/43-E/C.19/2013/25 (2013) 6 [23]; IUCN, Implementation of the United Nations Declaration on the Rights of Indigenous Peoples in the Context of the UNESCO World Heritage Convention, WCC-2012-Res-047-EN (2012); UN Special Rapporteur on the Rights of Indigenous Peoples, Rights of Indigenous Peoples, UNGA 67th sess, UN Doc A/67/301 (13 August 2013) 9-12, paras 33-42.

158 Not all State parties agree with this approach. For example, the International Work Group for Indigenous Affairs (IWGIA) reported that discussions at the 2015 World Heritage Committee meeting in Bonn, Germany ‘revealed strong resistance by many States Parties against adopting safeguards for the rights of indigenous peoples in the context of the World Heritage Convention’. IWGIA noted that a World Heritage Committee meeting member stated, in relation to the nomination of Kaeng Krachan Forest Complex in Thailand: ‘we are here at a prestigious committee of culture and heritage, we are not in Geneva on the Human Rights Council’: See International Work Group for Indigenous Affairs (IWGIA), 8th Session of the EMRIP: Joint Statement on Indigenous Rights and World Heritage (22 July 2015) <http://www.iwgia.org/news/search-news?news_id=1234>.

159 WHC Res 31 COM 13A, WHC 31st sess, UN Doc WHC-07/31.COM/24 (31 July 2007) 193; WHC Res 31 COM 13B, WHC 31st sess, UN Doc WHC-07/31.COM/24 (31 July 2007) 193.

160 Operational Guidelines 2016, UN Doc WHC.16/01, para 26. 161 WHC Res 31 COM 13A, WHC 31st sess, UN Doc WHC-07/31.COM/24 (31 July 2007) 193, 193 para 5.

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this objective was adopted when the Committee was under the chairmanship of a

paramount chief of Aotearoa/New Zealand, demonstrating the impact that a Pacific voice

within the Committee can have.

In 2015, the Committee formally resolved that the rights of Indigenous peoples should be

respected when nominating, managing and reporting on WH sites,162 and it made some

amendments to the Operational Guidelines. The Guidelines now recognise that the

involvement of local communities, Indigenous peoples and other stakeholders in the WH

nomination process is essential for them to have a shared responsibility with the State

party in the protection of the property.163 As such, State parties are encouraged to prepare

nominations with the widest possible participation of stakeholders and to ‘demonstrate,

as appropriate, that the free, prior and informed consent of Indigenous peoples has been

obtained’.164 The Committee also supports the involvement of a range of actors in WH

protection. The Guidelines state that a partnership approach to management is

preferable,165 involving local communities, Indigenous people, non-government

organisations and others with an interest in the property.166 Through these developments,

the Committee has shifted towards an approach that is more likely to be appropriate in

the Pacific, where Pacific Islanders have governed and managed their land and resources

for millennia,167 and where governments generally lack the capacity and resources to

administer, monitor and enforce top-down heritage protection laws.168

While the Committee has moved away from a purely State-centric approach to heritage

protection, the provisions of the Operational Guidelines have their limits. Importantly,

they do not require State parties to involve local communities in the nomination and

protection of WH sites, they merely encourage them to do so. In that sense, they fall short

162 WHC Res 35 COM 12E, WHC 35th sess, UN Doc WHC-11/35.COM/20 (7 July 2011) 270, 271 para 15(f). 163 Operational Guidelines 2016, UN Doc WHC.16/01, para 123. 164 Ibid. 165 Ibid para 39. 166 Ibid para 40. 167 See, eg, Ashish Kothari et al (eds), Recognising and Supporting Territories and Areas Conserved by Indigenous Peoples and

Local Communities: Global Overview and National Case Studies (Kalpavriksh, and Natural Justice, 2012) 16; Peter Bridgewater, Salvatore Arico and John Scott, ‘Biological Diversity and Cultural Diversity: The Heritage of Nature and Culture Through the Looking Glass of Multilateral Agreements’ (2007) 13(4-5) International Journal of Heritage Studies 405, 407; K Ruddle, E Hviding, R E Johannes, ‘Marine Resources Management in the Context of Customary Tenure’ (1992) 7 Marine Resource Economics 249, 250; Marjo Vierros et al, Traditional Marine Management Areas of the Pacific in the Context of National and International Law and Policy (United Nations University, 2010) 7; David J Doulman, ‘Community-Based Fisheries Management: Towards Restoration of Traditional Practices in the South Pacific’ (March 1993) Marine Policy 108, 108; R E Johannes, ‘Traditional Marine Conservation Methods in Oceania and their Demise’ 9 (1978) Annual Review of Ecology and Systematics 349, 350.

168 See generally Benjamin J Richardson, ‘Environmental Law in Postcolonial Societies: Straddling the Local-Global Institutional Spectrum’ (2000) 11(1) Colorado Journal of International Environmental Law and Policy 1. See also 2.4.1.

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of what some commentators have sought.169 Furthermore, the nomination dossier ‘format

and content’ requirements in the Operational Guidelines do not require the State party to

specify the extent to which local communities have been involved in the nomination

process, or whether their consent has been obtained.170 Consequently, the Committee may

not have any information about these issues when assessing a nomination.

The Committee has also refused calls to establish an expert group to advise on matters

concerning Indigenous people. A formal proposal to establish a World Heritage

Indigenous Peoples Council of Experts was raised following a forum held in Australia in

2000. Several possible roles were discussed for the group, including ensuring consultation

with local people, strengthening the management of existing sites, assisting with the

development of management guidelines, and advising on the nomination and evaluation

of sites.171 However, the Committee did not support the proposal,172 and the group is

unlikely to be established in the foreseeable future.173 As such, Indigenous peoples still

do not have a formal position within the Convention regime, which limits their ability to

influence the manner in which the treaty is implemented.

The WH Sustainable Development Policy (discussed at 4.3.1) notes that recognising

rights and fully involving Indigenous peoples and local communities, in line with

international standards, is at the heart of sustainable development.174 It refers to the need

to facilitate the participation of all stakeholders and rights holders, including Indigenous

peoples and local communities in the conservation of WH sites.175 The policy’s adoption

may lead the Committee to make further changes to the Operational Guidelines, perhaps

addressing the limitations referred to above.

169 See, eg, Stefan Disko, ‘World Heritage Sites in Indigenous Peoples’ Territories: Ways of Ensuring Respect for Indigenous

Cultures, Values and Human Rights’ in Dieter Offenhäußer, Walther Ch Zimmerli and Marie-Theres Albert (eds), World Heritage and Cultural Diversity (German Commission for UNESCO, 2010) 167. Disko argues that the Operational Guidelines should require the full and effective participation of Indigenous peoples in the identification, nomination, management and protection of WH: at 174. See also Carril, above n 145.

170 Operational Guidelines 2016, UN Doc WHC.16/01, part IIIB, annex 5. 171 These Are Our Powerful Worlds, Summary Report of the Working Group Workshop on the World Heritage Indigenous

People’s Council of Experts (Winnipeg, Manitoba, November 5 – 8 2001) <http://www.whc.unesco.org/document/9474> 4. 172 Report of the World Heritage Committee, WHC 25th sess, UN Doc WHC-01/CONF.208/24 (8 February 2002) 57, 57 para

XV.5. 173 Lynn Meskell, ‘UNESCO and the fate of the World Heritage Indigenous Peoples Council of Experts (WHIPCOE)’ (2013) 20

International Journal of Cultural Property 155, 157. 174 WH Sustainable Development Policy, UN Doc WHC-15/20.GA/15, para 21. 175 Ibid para 9.

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4.3.3 Customary protection and management of World Heritage Sites

This section analyses the Committee’s decision that sites under customary protection and

management are eligible for inscription on the WH List. Before exploring the implications

of that decision for the Pacific, the protection and management requirements for WH

listing will be explained.

(A) Adequate protection and management as a threshold requirement for World

Heritage listing

A site is only eligible for WH listing if it has OUV.176 The Convention does not define

the term OUV, but rather empowers the Committee to determine the criteria against which

a site’s value will be assessed.177 The Committee has decided that to have OUV, a site

must meet one or more of the prescribed criteria, as well as the conditions of integrity and

authenticity. These requirements were analysed in 3.3.1. In addition, the Committee

considers that a site must be adequately protected and managed to have OUV.178 Thus,

paragraph 97 of the 2016 Operational Guidelines states:

All properties inscribed on the WH List must have adequate long-term legislative, regulatory, institutional and/or traditional179 protection and management to ensure their safeguarding. This protection should include adequately delineated boundaries. Similarly States Parties should demonstrate adequate protection at the national, regional, municipal, and/or traditional level for the nominated property. They should append appropriate texts to the nomination with a clear explanation of the way this protection operates to protect the property.

Paragraph 97 is supplemented by other provisions (discussed in (C) and (D) below)

containing more detailed prescriptions about the management of sites nominated for WH

listing, their boundaries and buffer zones. Through these provisions, the Committee is

requiring the State party to provide some assurance that it will protect its WH. This is

reinforced by paragraph 53 of the Operational Guidelines, which states that nominations

for WH listing must demonstrate the full commitment of the State party to preserve the

heritage concerned, within its means.

176 World Heritage Convention arts 1, 2, 11(2). 177 Ibid art 11(5). 178 Operational Guidelines 2016, UN Doc WHC.16/01, para 78. 179 In this thesis, the word ‘customary’ is used instead of ‘traditional’: See 1.6.1.

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The requirement in paragraph 97 is expressed as a mandatory requirement. Its mandatory

nature is reinforced by UNESCO’s manual on the preparation of WH nominations, which

states that a nomination will fail if this requirement is not met.180 However, the extent to

which the provision is strictly or consistently enforced is debatable. As will be explored

in 5.3.3, East Rennell was inscribed on the WH List following what appears to be little

scrutiny of the adequacy of the site’s protection regime.181 Other sites in the Pacific have

also been listed despite the relevant Advisory Body recommending to the Committee that

the nominations be deferred to allow the State party to strength the protection of the

property.182 It may be that the Committee’s desire to list sites in the Pacific to help address

the imbalances in the WH List (in accordance with the Global Strategy) influenced its

assessments of these places against its own listing requirements. Regardless, paragraph

97 of the Operational Guidelines (and the provisions that supplement it) are important

because they make the protection and management of a site an issue for the Committee

to consider at the listing stage. Furthermore, State parties who wish to secure a successful

nomination are likely to try to ensure they meet the Committee’s requirements. As such,

these provisions provide the Committee with an avenue to influence how State parties

manage and protect their sites.

(B) The Committee’s recognition of customary protection and management of

World Heritage sites

Like the criteria for WH listing, the protection and management requirements for the

inscription of sites on the WH List have changed over time. In the Pacific context, the

most significant change occurred when the Committee recognised that a site protected

and managed through ‘traditional’ (referred to in this thesis as ‘customary’ – see 1.6.2)

systems could satisfy these requirements. This amendment to the Operational Guidelines

180 UNESCO / ICCROM / ICOMOS / IUCN, Preparing World Heritage Nominations (UNESCO, 2nd ed, 2011) 87. 181 The nomination of East Rennell was assessed against the listing requirements in the 1997 version of the Operational

Guidelines (UNESCO, Operational Guidelines for the Implementation of the World Heritage Convention, UN Doc WHC 97/2 (February 1997). The management and protection requirements for listing under this version were in some respects different to the requirements in the 2015 version. However, like the 2015 version, the 1997 version required listed sites to have adequate protection and management (paras 24(b)(ii), 44(b)(vi)). For detailed analysis of the nomination of East Rennell, see 5.3.3.

182 The sites are Chief Roi Mata’s Domain in Vanuatu, Phoenix Islands Marine Protected Area in Kiribati, Rock Islands Southern Lagoon in Palau: See ICOMOS, Evaluations of Nominations of Cultural and Mixed Properties to the World Heritage List, WHC 32nd sess, UN Doc WHC-08/32.COM/INF/8B1 (2008) 92 (Chief Roi Mata’s Domain, Vanuatu, Advisory Body Evaluation 1280), where ICOMOS considered that ‘the lack of legal protection for the core and buffer zone is a cause for concern’: at 98. See also ICOMOS, Evaluations of Nominations of Cultural and Mixed Properties to the World Heritage List, WHC 36th sess, UN Doc WHC-12/36.COM/INF.8B1 (2012) 21 (Rock Islands Southern Lagoon, Republic of Palau, Advisory Body Evaluation 1386), where ICOMOS considered that the ‘legal protection in place is not yet adequate and thus overall the protective measures for the property are not adequate’: at 28. See also IUCN, Evaluations of Nominations of Natural and Mixed Properties to the World Heritage List, WHC 34th sess, UN Doc WHC/10/34.COM/INF.8B2 (2010) 19 (Phoenix Islands Marine Protected Area, Kiribati, Advisory Body Evaluation 1325). Here, IUCN stated that the Phoenix Islands property does not fully meet the requirements of the Operational Guidelines in relation to protection and management: at 22.

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was a manifestation of changing attitudes towards the notion of cultural heritage (see

3.3.2(A)), as well as the growing recognition of the need for sustainable development (see

4.3.1) and the rights and roles of local people in heritage protection (see 4.3.2).

Under the 1978 version of the Operational Guidelines,183 all nomination dossiers had to

outline the ‘means of preservation’ of the nominated site.184 At that time, the Operational

Guidelines stated that the Committee must consider the ‘state of preservation’ of cultural

sites nominated for WH listing,185 but there was no requirement for such places to be

protected to any particular standard in order to be listed.

Adequate protection and management became a mandatory requirement for WH listing

under the 1988 Operational Guidelines.186 This change was made to align the Operational

Guidelines with the Committee’s practice in implementing the Convention.187 On several

previous occasions the Committee had deferred nominations on the grounds that the sites

were inadequately protected, on the recommendation of the relevant Advisory Body.188

The Operational Guidelines were therefore amended to state that protection legislation

was essential for nominated cultural sites,189 and natural sites required long term

legislative, regulatory or institutional protection.190

In 1994, the Operational Guidelines were further amended so that a cultural heritage site

under customary protection and management could qualify for WH listing.191 This change

occurred around the time the Global Strategy was adopted,192 and can be seen as part of

the Committee’s efforts to make the WH List more responsive to the diversity of the

world’s heritage. Importantly, the change coincided with the Committee’s introduction of

‘cultural landscapes’ as a category of WH site (discussed at 3.3.2(A)). As Smith and Jones

have stated, ‘[m]any landscapes of the Pacific Islands are managed according to

183 UNESCO, Operational Guidelines for the Implementation of the World Heritage Convention, UN Doc WHC/2 (1978). 184 Ibid para 13(iv). 185 Ibid para 8. 186 WHC Res CONF 001 VIII.20-27, WHC 12th sess, UN Doc SC-88/CONF.001.13 (23 December 1988) 5-6; UNESCO,

Operational Guidelines for the Implementation of the World Heritage Convention, UN Doc WHC/2/Revised (December 1988) paras 24(b)(ii), 36(b)(vi).

187 Report of the World Heritage Committee, WHC 12th sess, UN Doc SC-88/CONF.001.13 (23 December 1988) 5. 188 Revision of the Operational Guidelines, WHC 12th sess, UN Doc SC-88/CONF.007/12 (9 May 1988) 3. 189 UNESCO, Operational Guidelines for the Implementation of the World Heritage Convention, UN Doc WHC/2/Revised

(December 1988) para 24(b)(ii). 190 Ibid para 36(b)(vi)). 191 WHC Res CONF 003 XIV.3, WHC 18th sess, UN Doc WHC-94/CONF.003.16 (31 January 1995) 64-66; UNESCO,

Operational Guidelines for the Implementation of the World Heritage Convention, UN Doc WHC/2/Revised (February 1994) para 24(b)(ii).

192 The Global Strategy is discussed at 1.2.3.

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customary practices and these practices will be the key to sustaining their values.’193 It

was therefore logical that the Committee’s recognition of cultural landscapes was

accompanied by recognition of the customary systems that shape and protect such places.

The amendment of the Operational Guidelines to allow for the listing of sites protected

through customary systems was initially restricted to cultural sites. However, during this

era there was also increasing recognition of the role of customary systems in protecting

natural areas. This is particularly evident in the work of the IUCN. Its 1994 guidelines on

protected areas defined a ‘protected area’ as ‘[a]n area of land and/or sea especially

dedicated to the protection and maintenance of biological diversity, and of natural and

associated cultural resources, and managed through legal or other effective means’.194 By

including the words ‘other effective means’ in the definition, IUCN was acknowledging

that protected areas could be managed through mechanisms other than legislation,

including customary systems.195 This was reiterated by IUCN’s inclusion of ‘Indigenous

Community Conservation Areas’ (ICCAs) in its list of protected area governance types

(alongside governance by states, private governance, and shared governance).196 ICCAs

are ecosystems ‘voluntarily conserved by Indigenous peoples and local communities,

both sedentary and mobile, through customary laws or other effective means’.197 Given

that IUCN is an Advisory Body under the Convention, these developments no doubt

influenced the Committee’s approach to WH protection. In 1998, the Committee further

amended the Operational Guidelines so that natural sites protected under customary

mechanisms could also qualify for WH listing.198

The Committee’s recognition of customary protection of WH sites was important for the

Pacific, where much land is under customary tenure, and where people have practiced

their own laws regulating land and resource use for thousands of years (see chapter 2).

This change enabled the listing of East Rennell, which at the time had little State

legislative protection (see 5.3.3 and 6.3 for discussion of customary protection at East

Rennell). Customary protection was also recognised in the listing of the Rock Islands

Southern Lagoon site in Palau, and the Chief Roi Mata’s Domain site in Vanuatu. The

193 Anita Smith and Kevin L Jones (eds), Cultural Landscapes of the Pacific Islands (ICOMOS, 2007) 120. 194 IUCN, Guidelines for Protected Area Management Categories (IUCN, 1994). 195 Nigel Dudley (ed), Guidelines for Applying Protected Area Management Categories (IUCN, 2008) 8. 196 Ibid 26. 197 Grazia Borrini-Feyerabend et al, above n 66, 40. 198 WHC Res CONF 203 XIV.3, WHC 22nd sess, UN Doc WHC-98/CONF.203/18 (29 January 1999) 56.

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Palau WH site enjoys some protection under traditional cultural controls, such as bul

(which are temporary restrictions imposed by village chiefs on certain activities).199

Similarly, the heritage of Chief Roi Mata’s Domain continues to be protected through

tapu restrictions determined by the area’s chiefs, which seek to prevent the over-

exploitation of natural resources.200

However, as will be explored below and in the remainder of this thesis, the listing of sites

based on their customary protection presents many challenges. Some of these arise from

provisions of the Operational Guidelines concerning site management, boundaries and

buffer zones (see (C) and (D) below). Furthermore, the listing of a site pursuant to its

customary protection raises questions about the role of the State in the site’s conservation

(see (E) below).

(C) World Heritage sites under customary protection: The application of the

management system requirements

The Committee introduced the notion of WH ‘management’ into the Operational

Guidelines, even though the word does not appear in the Convention. Among other things,

this change reflected the emergence of the concept of sustainable development (see 4.3.1),

which highlighted the need for holistic approaches to heritage protection under which the

interactions between the site and its surroundings are managed. The Operational

Guidelines now say that the purpose of a WH management system is the effective

protection of the property,201 confirming that the notions of heritage management and

protection are closely linked.

The Operational Guidelines do not prescribe how a State must manage a WH site, but do

provide some guidance on what the Committee considers is an appropriate approach.

They note that the form of the system will depend on the characteristics and needs of the

site, and it may incorporate customary practices.202 However, they also state that a site’s

management system should be documented203 and will often include a cycle of planning,

implementation, monitoring, evaluation and feedback; monitoring and assessment of

199 Republic of Palau, above n 122, 109. 200 Republic of Vanuatu, above n 121, 96. 201 Operational Guidelines 2016, UN Doc WHC.16/01, para 109. 202 Ibid para 110. 203 Ibid paras 108, 132(5).

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impacts; capacity building; and a description of how the management system functions.204

As noted by Smith and Turk, a ‘site being well managed under customary tenure may not

have the need for such heritage management structures and tools’.205 As such, while the

Operational Guidelines recognise that a WH site may be managed through a range of

approaches, they also suggest a structure for a management system that is not necessarily

appropriate for a site under customary protection.

(D) World Heritage sites under customary protection: The application of the

boundary and buffer zone requirements

The Operational Guidelines also contain provisions concerning boundaries and buffer

zones. They state that the boundaries of a WH site should be drawn to ensure all the

attributes that convey the site’s OUV are within the property.206 The Guidelines also state

that if necessary, a buffer zone subject to legal or customary protection should be

established around the site.207

Implementation of the boundary provisions may be problematic, particularly if the site

and its surrounds are under customary ownership. Land tenure boundaries may not

correspond with the heritage attributes in the area, so compliance with the Operational

Guidelines may result in the site encompassing the land of several landowner groups

governed under different customary legal systems. Coordinating the management of such

an area could be difficult. Ruddle et al note that customary marine management systems

generally work better where the landowning group is relatively small.208 It therefore

follows that in some cases, it may be appropriate to advocate for the boundary

requirements to be relaxed, to allow the delineation of a WH site that can be effectively

protected under one customary legal system, rather than creating a large site under

fragmented ownership.

204 Ibid para 111. 205 Anita Smith and Cate Turk, ‘Customary Systems of Management and World Heritage in the Pacific Islands’ in Sue O’Connor,

Denis Byrne and Sally Brockwell (eds), Transcending the Culture-Nature Divide in Cultural Heritage: Views from the Asia-Pacific Region (ANU E Press, 2012) 22, 30.

206 Operational Guidelines 2016, UN Doc WHC.16/01, para 99. See also paras 100-102. 207 Ibid para 103. See also paras 104-107. For a discussion of the history of the buffer zone requirement in the Operational

Guidelines see Josephine Gillespie, ‘Buffering for Conservation at Angkor: Questioning the Spatial Regulation of a World Heritage Property’ (2012) 18(2) International Journal of Heritage Studies 194.

208 Ruddle, Hviding and Johannes, above n 167, 268.

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Implementing the buffer zone provisions may also be challenging. Buffer zones can be a

contentious because they may intrude on property rights.209 The fact that the buffer zone

requirements in the Operational Guidelines are often not enforced or unevenly enforced

perhaps demonstrates a lack of consensus among States about this requirement.210

Compliance with the provisions can be particularly challenging if the land within the

buffer zone is owned by a different customary group from the WH site, as the buffer zone

owners may not accept restrictions on the use and development of their land, especially

if they receive no tangible benefits from the WH listing.

As will be explored further in 5.3.2, East Rennell provides a clear example of the

difficulties associated with applying these provisions to a site under customary tenure,

but also the implications of non-compliance for a site’s protection. It will be argued that

while the boundary and buffer zone requirements may need to be applied flexibly for sites

under customary protection, those issues and their effect on WH protection should not be

ignored (see also 9.2.3(B)).

(E) World Heritage sites under customary protection: The role of the State in

protecting such sites

In 4.2.3(C), it was explained that the Convention gives State parties discretion to tailor

their heritage protection laws to fit their circumstances. The Operational Guidelines do

not diminish that discretion. While the Guidelines contain some provisions concerning

the management of WH sites (see (C) above), they contain little guidance on how State

parties should protect such places under law. Paragraph 98 of the Guidelines simply states

that legislative and regulatory measures should ensure the protection of the site against

pressures that might negatively impact its OUV. Thus, Pacific Island State parties have

broad scope to design laws to fit their context.

From a legal point of view, the fact that a site is listed based on its customary protection

does not derogate from the State party’s duty under Articles 4 and 5 to protect the site.

Having ratified the Convention, a State party must implement the treaty in good faith,211

209 Affolder, above n 19, 356. 210 Ibid. 211 Convention on the Law of Treaties, opened for signature 23 May 1969, 1155 UNTS 331 (entered into force 27 January 1980)

art 26.

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and it cannot justify any failure to do so on the basis of its domestic law.212 Consequently,

a State party is still required to implement the legal measures necessary to protect its WH

even if the site is listed on the basis of its customary protection. Furthermore, from a

practical point of view, successful heritage protection will often require a combination of

both customary and State approaches (see 2.4.2). The State party is therefore faced with

the task of developing laws and other measures to comply with its Convention obligations,

whilst also respecting and supporting the customary system that enabled the site to be

listed in the first place.

Achieving this in practice will often be challenging. As demonstrated by this research on

East Rennell, a State party may consider itself unable and/or unwilling to implement the

measures that the Convention bodies consider are necessary to protect OUV because of

the site’s land tenure. It is argued in this thesis that when a site is nominated pursuant to

customary protection, the State’s ability and willingness to conserve the site’s OUV

(including by taking steps that are not supported by all landowners) should be assessed

(see 9.2.3(C)).

4.4 Conclusion

The Convention regime reflects the era in which the treaty was drafted. It reveals an

attempt to balance respect for State sovereignty with the international community’s

interest in the protection of WH. Consequently, the Convention declares that a State party

has primary responsibility for heritage protection, but envisages that the international

community will play a role by supporting State parties to comply with their obligations.

Also reflecting the era in which it was drafted, the Convention focuses on delineating the

roles of State parties and the international community in achieving heritage protection,

while making no mention of the role of non-State actors operating at the local level. This

reflects the traditional centralised approach to heritage protection, which was widely

accepted when the Convention was adopted, but which is often inappropriate in the

Pacific.

212 Ibid art 27.

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This chapter has demonstrated that over time the Convention regime has evolved to

become a better fit for the Pacific context. Since the Convention was adopted, support has

grown for a holistic approach to heritage protection, under which the heritage place is

considered in its economic, social and environmental context, and the rights and roles of

local people are respected. In response, the WH Committee has revised the Operational

Guidelines to encourage States to approach heritage protection through the framework of

sustainable development, and to involve local communities in the nomination and

protection of sites. The Committee’s decision that sites under customary protection and

management are eligible for WH listing was also significant for Pacific Island States.

This evolution has been possible because the Convention text just establishes a framework

for that regime, giving the Committee and State parties significant powers and discretions

to implement its provisions in accordance with contemporary views. Some challenges

associated with the Convention text remain, including the inherent tension between

national sovereignty and the international community’s interest in WH protection, and

the limitations of the international assistance system. Furthermore, the provisions of the

2016 Operational Guidelines have their limitations. However, notwithstanding this, the

dynamic nature of the Convention regime has allowed it to become a more useful tool for

the preservation of Pacific heritage.

Ultimately however it is the Pacific Island States, not the Committee, who dictate how

WH sites in the region will be protected. They must strive to develop measures that

achieve an appropriate balance between heritage conservation and economic and social

development. They must respect the rights of local communities whilst also ensuring the

preservation of the site’s OUV, and they must identify approaches that are appropriate

given their resource constraints, the nature of their heritage, their plural legal systems and

the land tenure of their heritage sites. The analysis of the implementation of the

Convention by Solomon Islands in the next part of this thesis demonstrates that these are

not easy tasks.

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Part 3

World Heritage Protection

in Solomon Islands

147

Chapter 5: Solomon Islands’ World Heritage program

5.1 Introduction

Part 2 of this thesis considered World Heritage (WH) at the Pacific level. In this part, the

focus narrows to Solomon Islands, with an exploration of the opportunities and challenges

for WH protection in that State.

East Rennell was the first Pacific Island site to be included in the WH List, and the first

natural site to be listed based on its customary protection. Its listing is therefore often

described as a milestone in the development of the World Heritage Convention1 (the

Convention) regime.2 Despite this, neither the site’s listing, nor Solomon Islands’

implementation of the Convention more broadly, has been comprehensively analysed.

This chapter considers these issues, to determine whether they help explain any of the

contemporary issues associated with the protection of East Rennell under customary and

State law (which are explored in chapters 6, 7 and 8).

The chapter begins by examining the rationales behind international, national and local

support for Solomon Islands’ signature of the Convention and the nomination of East

Rennell (5.2). It explains that the WH Committee and the Advisory Bodies supported

these events in part because of their desire to address imbalances in the WH List.

However, support at the national and local level was primarily based on a belief that the

listing of a WH site in Solomon Islands would enhance tourism.3 This has not eventuated,

which has contributed to WH being a low priority for the Solomon Islands government

(SIG) and the East Rennellese people.

The chapter then critically analyses the inscription of East Rennell on the WH List (5.3).


1037 UNTS 151 (entered into force 17 December 1975) (‘World Heritage Convention’). 2 See, eg, T Badman et al, Outstanding Universal Value: Standards for Natural World Heritage (IUCN, 2008). Badman et al

state that the inscription of East Rennell set an important precedent in terms of ‘the acceptance of customary law and management as a sufficient basis for the…long term protection of natural World Heritage properties’: at 24.

3 John McKinnon, Solomon Islands World Heritage Site Proposal: Report on a Fact Finding Mission (4 – 22 February 1990) (Victoria University of Wellington, 1990) 2, 35-36; Elspeth J Wingham, World Heritage / Ecotourism Programme: Draft Project Implementation Document, August 1998, attached as attachment 3 to Elspeth J Wingham, Nomination of East Rennell, Solomon Islands by the Government of Solomon Islands for Inclusion in the World Heritage List Natural Sites (1997) 17. See 5.2.2 for further discussion.

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It considers why East Rennell was nominated as a natural WH site, and the challenges

this presents for the protection of the area. It suggests that certain aspects of the site and

its protection were not sufficiently scrutinised before it was listed, and thus it is

questionable whether the site met the Committee’s listing requirements. It is argued that

in the future, the scope and strength of customary legal systems, and their relationship to

management plans and State laws, should be assessed in more detail at the nomination

stage.

The chapter ends by examining Solomon Islands’ involvement with WH since the listing

of East Rennell (5.4). It explains that the outbreak of civil conflict in the country in 1998

resulted in Solomon Islands not engaging with WH for several years. Since the conflict

ended, the SIG has taken some steps to implement the Convention, but its WH program

remains limited and it has complied with few of the Committee’s resolutions concerning

East Rennell. Improving the dialogue between the SIG and the Committee could help end

the cycle of unfilled Committee requests.

5.2 Solomon Islands’ early involvement with the World Heritage

Convention regime

5.2.1 Solomon Islands’ signature of the World Heritage Convention

Solomon Islands became involved with WH in the context of the Global Strategy for a

Representative, Balanced and Credible World Heritage List (the ‘Global Strategy’),

which was adopted by the WH Committee in 1994 (see 1.2.3). As the Pacific has always

been under-represented on the WH List, the development of that strategy coincided with

efforts to raise awareness about the Convention among Pacific Island States. For example,

in 1989 the IUCN presented a paper on WH to the Fourth South Pacific Nature

Conservation and Protected Areas Conference, which lead Solomon Islands to express

interest in signing the Convention.4 The New Zealand government then began assisting it

to become a signatory, including commissioning research to identify potential WH sites.5

Solomon Islands’ initial involvement with WH was therefore facilitated by international

efforts to expand the Convention’s reach into the Pacific.

4 Report of the World Heritage Committee, WHC 13th sess, UN Doc SC-89/CONF.004/12 (22 December 1989) para 8. 5 McKinnon, above n 3, 1.

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Studies in the early 1990s identified Marovo Lagoon and East Rennell as possible

candidates for WH listing6 (see Figure 2). Marovo Lagoon, in the west of Solomon

Islands, is one of the world’s largest coral reef lagoons, and is fringed by raised barrier

reefs and high volcanic forest-covered islands.7 The lagoon’s impressive marine and

island ecosystems lead many NGOs to run conservation projects there, some of which

included advocating for WH listing.8 A project to prepare a WH nomination for Marovo

commenced, and was initially supported by the SIG as part of its strategy to promote

tourism (discussed below).9 However, the project was abandoned in 1994, because it was

affected by ‘misinformation and political interference’, and the area had been heavily

logged.10 In addition, the size of the resident population (approximately 8,500 people)

made conducting community consultations logistically difficult.11 Marovo Lagoon now

forms part of a site on Solomon Islands’ Tentative List, so it may be nominated in the

future (see 5.4.3).

The other site identified as a potential candidate for WH listing was East Rennell. As the

area had a relatively small resident population12 and had not been logged, key issues that

plagued the Marovo Lagoon proposal did not apply there. The site’s nomination dossier

was prepared by a New Zealander, following consultations with the East Rennellese

people and with funding from the New Zealand government.13 It was submitted by the

SIG to the WH Committee in 1997.

5.2.2 The nomination of East Rennell for World Heritage listing

The East Rennell WH site encompasses the southern third of the island of Rennell,

including the marine area extending three nautical miles into the sea (see Figure 3). The

6 McKinnon, above n 3; Charles d’E Darby, Rennell Island and Marovo Lagoon: A Proposal by Solomon Islands for World

Heritage Site Listing as the Basis of a Sustainable Rural Development Programme (Conservation Development Services, 1989).

7 Edvard Hviding, ‘Knowing and Managing Biodiversity in the Pacific Islands: Challenges of Environmentalism in Marovo Lagoon’ (2006) 58(187) International Social Science Journal 69, 72.

8 Ibid 74. 9 McKinnon, above n 3, 2. 10 Wingham, above n 3, 7. 11 Ibid. 12 Population estimates for the site vary. The latest census found that the population was 745: see Solomon Islands Government,

Volume I Report on 2009 Population and Housing Census: Basic Tables and Census Description, Statistical Bulletin 6/2012 (Solomon Islands Government, 2012) 24. For other population estimates, see n 44 in chapter 1.

13 Elspeth J Wingham, Nomination of East Rennell, Solomon Islands by the Government of Solomon Islands for Inclusion in the World Heritage List Natural Sites (1997).

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site includes Lake Tegano,14 which covers 18% of Rennell making it the largest lake in

the Pacific Islands.15 The remainder of the terrestrial part of the site is predominantly

dense, low stature forest that supports many unique species.16 The marine area includes

extensive fringing coral reefs, hosting diverse invertebrate, fish and benthic marine life.17

The area (traditionally known as Mugaba) is owned and occupied by the people of East

Rennell, whose ancestors first arrived on the island in around 1400 AD.18 Most live within

one of the four villages on the south west side of the lake (Tebaitahe, Nuipani and Tegano

and Hutuna). They live predominantly subsistence lifestyles, and continued to be

governed through their customary legal system.

The IUCN and the Committee supported the inscription of East Rennell on the grounds

that it had outstanding natural heritage values and it met the listing requirements in the

1997 version of the Operational Guidelines for the Implementation of the World Heritage

Convention19 (the ‘Operational Guidelines’) which applied when the site was nominated

(see 5.3). However, the site’s listing also had broader global significance. Before it was

nominated, East Rennell was identified by IUCN and the United Nations Environment

Program as having high conservation value.20 In addition, it had been identified in some

IUCN studies as a site whose listing could help fill gaps in the WH List, consistent with

the Global Strategy.21 Indeed, when the Committee decided to inscribe the site, several

State party delegates remarked on the contribution the listing would make to the

implementation of that strategy.22

14 Tegano is sometimes spelled Teganno or Te Nggano. 15 See, eg, Wingham, above n 13, 10. 16 See, eg, Adoption of Retrospective Statements of Outstanding Universal Value, WHC 36th sess, UN Doc WHC-12/36.COM/8E

(15 June 2012) 55 (East Rennell, Solomon Islands) (‘East Rennell Statement of OUV’). It was adopted by the WH Committee pursuant to WHC Res 36 COM 8E, WHC 36th sess, UN Doc WHC-12/36.COM/19 (June-July 2012) 225.

17 See, eg, Simon Albert et al, Survey of the Condition of the Marine Ecosystem within the East Rennell World Heritage Area, Solomon Islands (University of Queensland, Solomon Islands Marine Ecology Laboratory, Griffith University and WWF-Solomon Islands, 2013).

18 See, eg, Rolf Kuschel, ‘Early Contacts Between Bellona and Rennell Islands and the Outside World’ (1988) 23(2) Journal of Pacific History 191, 191; R G Roberts, ‘The Children of Kaitu: The Legend of the First Polynesian Adventurers to Settle on the Islands of Rennell and Bellona’ (1958) 67(1) Journal of Polynesian Society 2, 3.

19 UNESCO, Operational Guidelines for the Implementation of the World Heritage Convention, UN Doc WHC 97/2 (February 1997) (‘Operational Guidelines 1997’).

20 Arthur L Dahl, Review of the Protected Area Systems in Oceania, (IUCN, 1986), cited in IUCN, Evaluations of Nominations of Natural and Mixed Properties to the World Heritage List, WHC 22nd sess (1998) 79, 80 (‘IUCN Evaluation of East Rennell Nomination’). See also IUCN, The World’s Greatest Natural Areas: An Indicative Inventory of Natural Sites of World Heritage Quality (IUCN, 1982), in which IUCN notes East Rennell is of ‘outstanding geological, biological, and scenic value: at 48.

21 Jim Thorsell, Renee Ferster Levy and Todd Sigaty, A Global Overview of Wetland and Marine Protected Areas on the World Heritage List (IUCN, 1997) 21; Jim Thorsell and Todd Sigaty, A Global Overview of Forest Protected Areas on the World Heritage List (IUCN, 1997) 21.

22 WHC Res CONF 203 VIII.A.1, WHC 22nd sess, UN Doc WHC-98/CONF/203/18 (29 January 1999) 25, 26.

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The rationale behind the decisions of the SIG and the East Rennellese to become involved

with WH was somewhat different. In the 1980s, a Queensland-based company proposed

the logging of Rennell, prompting a group of biologists from New Zealand to advocate

for its conservation.23 Their conservation plan was prepared without consulting the

Rennellese, and thus it did not initially enjoy local support.24 However, the plan was

subsequently shared with the local people, many of whom were surprised to learn about

the logging proposal and expressed an interest in conservation.25 When Munch-Peterson,

the then head of the Tourism Council of the South Pacific, became aware of these events

in 1987, he spearheaded the development of a tourism plan for Rennell.26 The report on

this plan included a recommendation that the island be nominated for WH listing.27

Around this time, the SIG was increasing its efforts to establish a tourism industry in

Solomon Islands, and WH was viewed as a means of achieving this.28 Consequently,

when the Solomon Islands Parliament received the Rennell tourism report, it supported

the recommendation regarding WH.29 The fact that the SIG chose its newly established

Ministry of Tourism and Aviation to manage the nomination demonstrates a strong

economic rationale behind its decision to support the listing.

The SIG’s perception of WH as a mechanism for enhancing economic development was

shared by the East Rennellese people. In conjunction with the preparation of the

nomination dossier, the New Zealand government supported the development of

ecotourism in the area by assisting with the construction of guesthouses, supplying

canoes, and establishing some small businesses including bee keeping, a bakery and a

poultry farm.30 The nomination dossier states:

It should be noted that the small business component of the [WH] project is the area that is of the most interest to local people. Some people are interested in looking after the environment but they all require a means to make money.31

Thus, the ecotourism initiatives are likely to have contributed to the high level of local

support for the nomination of East Rennell (estimated at 80% of the adult population).32

23 Nils Finn Munch-Petersen, ‘An Island Saved, At Least for Some Time? The Advent of Tourism to Rennell, Solomon Islands’

in Godfrey Baldacchino and Daniel Niles (eds), Island Futures: Conservation and Development Across the Asia-Pacific Region (Springer, 2011) 169, 172.

24 Ibid. 25 Ibid. 26 Ibid. 27 Ibid 173. 28 McKinnon, above n 3, 35-36. 29 Munch-Peterson, above n 23, 173. 30 Paul Dingwall, Report on the Reactive Monitoring Mission to East Rennell, Solomon Islands, 21 – 29 October 2012 (IUCN,

2013) 8. 31 Wingham, above n 3, 17. 32 Wingham, above n 13, 39.

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There were therefore different rationales behind the international, national and local

support for the site’s listing. This variation is not surprising. The WH Committee and the

IUCN are charged with implementing aspects of the Convention, so were justifiably

focused on the site’s global significance and the impact its listing would have on the

composition and credibility of the WH List. The priorities of the SIG and the East

Rennellese people are understandably more localised and, given that the country is a Least

Developed Country, often centred on economic and social development. The variation is

also not unique to Solomon Islands, as many States seek WH listing principally for its

economic benefits.33 Such a variation can however manifest itself in the Convention

bodies (i.e. the Committee and the Advisory Bodies), the State party and local people

having starkly different priorities concerning the site.

The effective management and protection of WH sites does not always require the

complete alignment of international, national and local perceptions of WH. For example,

Trau (who has worked at and researched the Chief Roi Mata’s Domain WH site in

Vanuatu) writes about the ‘glocalisation’ of the concept of WH at that site. Like the East

Rennellese, the Lelema people (the customary owners of Chief Roi Mata’s Domain)

consider income generation for education, health and transport as the overwhelming

priority.34 However, unlike at East Rennell, WH is becoming increasingly understood and

valued at the Vanuatu WH site. This is occurring not because the Lelema communities

have ‘absorbed the global doctrine’ of WH, but because they are adapting and applying

global and local principles of development and conservation to meet their own knowledge

and aspirations.35 This local adaptation of the concept of WH has become integral to the

ongoing management and protection of the site by the Vanuatu government and the

Lelema people.36

This ‘glocalisation’ process has not occurred in Solomon Islands, at least partly because

neither the SIG nor the East Rennellese people have enjoyed economic benefits from WH.

33 See, eg, Edward J Goodwin, ‘The World Heritage Convention, the Environment and Compliance’ (2008-2009) 20 Colorado

Journal of International Environmental Law and Policy 157. 34 Adam M Trau, ‘The Glocalisation of World Heritage at Chief Roi Mata’s Domain, Vanuatu’ (2012) 24(3) Historic

Environment 4, 7. See also Adam M Trau, World Heritage at Chief Roi Mata’s Domain: The Global-Local Nexus of Community Heritage Conservation and Tourism Development in Vanuatu (PhD Thesis, University of Western Sydney, 2013).

35 Trau, above n 34, ‘The Glocalisation of World Heritage’, 4. 36 Other reasons for the relative success of the Chief Roi Mata’s Domain site include the accessibility of the site from Port Vila

(which has facilitated tourism) and the level of government support. See generally Trau, World Heritage at Chief Roi Mata’s Domain, above n 34; Meredith Wilson, Chris Ballard, Richard Matanik and Topie Warry, ‘Community as the First C: Conservation and Development through Tourism at Chief Roi Mata’s Domain, Vanuatu’ in Anita Smith (ed), World Heritage in a Sea of Islands: Pacific 2009 Programme, World Heritage Papers 34 (UNESCO, 2012) 68.

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Consequently, as will be discussed further in this and following chapters, WH remains a

low priority for the government and a source of misunderstanding and disenchantment

among the East Rennellese people. In this context, conserving the OUV of East Rennell

to the standard required by the Committee is a challenge.

5.3 The inscription of East Rennell on the World Heritage List

The Committee inscribed East Rennell on the WH List at its 22nd session in 1998, in

accordance with a recommendation from the IUCN.37 This section analyses IUCN’s

evaluation of the nomination dossier38 and the Committee’s decision to inscribe the site,

with reference to the requirements for WH listing in the 1997 version of the Operational

Guidelines.39 The analysis suggests that certain aspects of the site and its protection do

not appear to have been thoroughly scrutinised before the site was listed. Links can be

drawn between the identified issues and current challenges associated with protecting the

site.

5.3.1 The natural and cultural values of East Rennell

Rennell is an illustration of the theory of island biogeography.40 In simple terms, this

widely-accepted theory posits that the number of species on an island is linked to its size

and its distance from the mainland (the source of species).41 Evidence of the theory can

be seen in the western Pacific, where as one moves eastward, the islands become smaller

and more isolated, and biodiversity decreases.42 With a length of 87km and an average

width of 10km, Rennell is the largest outlying island in the Solomon Island group. The

isolation of the island made inhabitation by new species rare, but when species did reach

Rennell they often adapted to their new environment by evolving to form new species.43

37 WHC Res CONF 203 VIII.A.1, WHC 22nd sess, UN Doc WHC-98/CONF/203/18 (29 January 1999) 25. 38 IUCN, Evaluations of Nominations of Natural and Mixed Properties to the World Heritage List, WHC 22nd sess (1998) 79

(‘IUCN Evaluation of East Rennell Nomination’). 39 UNESCO, Operational Guidelines for the Implementation of the World Heritage Convention, UN Doc WHC 97/2 (February

1997) (‘Operational Guidelines 1997’). The requirements for WH listing are analysed in 3.3 and 4.3.3. 40 See, eg, Wingham, above n 13, 35. 41 Robert J MacArthur and Edward O Wilson, ‘An Equilibrium Theory of Insular Zoogeography’ (1963) 17 Evolution 373. Other

factors also affect the biological diversity of islands, such as the island’s age, its isolation and its environmental heterogeneity. See, eg, Kostas A Triantis et al, ‘Measurements of Area and the (Island) Species-Area Relationship: New Directions for an Old Pattern’ (2008) 117 Oikos 1555.

42 See, eg, Barry Cox and Peter Moore, Biogeography: An Ecological and Evolutionary Approach. Blackwell (Oxford, 1980) 109-11.


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Because of this process and the fact that there are few natural predators on Rennell,44

many endemic species can now be found there, including plants, birds, bats, land snails,

and a sea snake.45 Rennell is particularly renowned for its unique avifauna (bird life).46

East Rennell was nominated on the basis that it met several of the natural criteria

prescribed in the 1997 Operational Guidelines.47 However, IUCN and the Committee

found that it met just one, namely the criterion in paragraph 44(a)(ii).48 That criterion

covers sites that demonstrate:

significant on-going ecological and biological processes in the evolution and development of terrestrial, freshwater, coastal and marine ecosystems and communities of plants and animals.

East Rennell was found to meet this provision because it is a ‘stepping-stone in the

migration and evolution of species in the western Pacific’49 and thus, as explained above,

significant speciation processes occur there.

No documents explaining why East Rennell was nominated based on natural criteria only

have been identified by the author. This decision may have been made because those

involved with preparing the nomination dossier considered that the site did not meet any

cultural criteria. The existence of a substantial body of research concerning the

environment of Rennell may also have contributed to the decision. Anita Smith has noted

that the first WH sites nominated by Marshall Islands, Papua New Guinea and Fiji were

well-researched before they were considered for WH listing, which enabled nomination

dossiers to be developed with few resources and within a relatively short timeframe.50

From the 1920s, Rennell was visited by several scientific missions,51 and was the subject

44 Steve Turton, East Rennell World Heritage Area: Assessment of the State of Conservation of World Heritage Values. Final

Field Report (James Cook University, 2014) 7. 45 See, eg, Wingham, above n 13, 14-22. 46 See, eg, Christopher E Filardi et al, ‘New Behavioral, Ecological, and Biogeographic Data on the Avifauna of Rennell,

Solomon Islands’ (1999) 53(4) Pacific Science 319; J M Diamond, ‘The Avifauna of Rennell Island’ in Torben Wolff (ed), The Natural History of Rennell Island, British Solomon Islands (Danish Science Press, vol 8, 1984).

47 Wingham, above n 13, 34-37. 48 This is now para 77(ix) in the current (2016) version of the Operational Guidelines. See UNESCO, Operational Guidelines

for the Implementation of the World Heritage Convention, UN Doc WHC.16/01 (26 October 2016) para 77(ix) (‘Operational Guidelines 2016’).

49 IUCN Evaluation of East Rennell Nomination 82; WHC Res CONF 203 VIII.A.1, WHC 22nd sess, UN Doc WHC-98/CONF/203/18 (29 January 1999) 25, 25.

50 Anita Smith, ‘World Heritage and Outstanding Universal Value in the Pacific Islands’ (2015) 21(2) International Journal of Heritage Studies 177, 183.

51 These include the American Whitney Expeditions in 1928 and 1930, the American Templeton-Crocker Expedition in 1933, the Danish Rennell Expedition in 1951, and the British Museum (Natural History) Expedition in 1953. For a discussion of early expeditions see Torben Monberg, ‘Research on Rennell and Bellona: A Preliminary Report’ (1960) 2 Folk 71; T Wolff, ‘The Fauna of Rennell and Bellona, Solomon Islands’ (1969) 255(800) Philosophical Transactions of the Royal Society of London, Series B, Biological Sciences 321; Wolff, Torben (ed), The Natural History of Rennell Islands, British Solomon Islands. Scientific Results of the Danish Rennell Expedition, 1951 and the British Museum (Natural History) Expedition 1953 (Danish Science Press, volumes 1 – 4, 1958-1962); Wolff, Torben (ed), The Natural History of Rennell Island, British Solomon Islands. Scientific Results of the Noona Dan Expedition (Rennell Section, 1962) and The Danish Rennell Expedition 1965 (Danish Science Press, volumes 5 – 8, 1968).

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of subsequent research exploring its flora and fauna.52 This work would have helped those

preparing the nomination dossier to demonstrate that the site warranted listing as a natural

WH site. The 1997 Operational Guidelines also presented a barrier to East Rennell’s

nomination as a cultural site. They stated that cultural sites could only be nominated if

they were first included in the State party’s Tentative List.53 As Solomon Islands did not

have a Tentative List at that time, the nomination of East Rennell as a cultural site would

have been inconsistent with that requirement.54 The Operational Guidelines did not

however prevent the site’s nomination as a mixed site, and indeed when the Bureau of the

Committee55 reviewed the nomination dossier it recommended that the SIG assess

whether this was feasible.56 The government indicated it would consider this,57 but

ultimately East Rennell was nominated as a natural site.

The international significance of East Rennell is evident from the site’s Statement of

OUV,58 (adopted by the WH Committee in 2012), which is intended to provide the basis

for the property’s protection and management.59 It notes that the island hosts several

unique species, and describes it a ‘true natural laboratory for scientific study’.60 In

accordance with this Statement, the Committee’s focus is on ensuring that the threats to

the area’s marine and terrestrial ecosystems (such as logging, mining and over-

harvesting) are addressed. While the Statement of OUV acknowledges that the East

Rennellese people own and occupy the site, it does not refer to their cultural heritage,

despite the cultural significance of the natural environment to local people.

In contrast to the Committee’s position, the East Rennellese are most concerned about the

preservation of their cultural identity, as expressed through their land tenure system,

environmental knowledge, traditional resource use, crafts, songs and dance.61 They are

52 For a comprehensive bibliography of literature on the natural environment of Rennell see Rolf Kuschel, Torben Monberg, and

Torben Wolff, Bibliography of Rennell and Bellona Islands (University of Copenhagen, 2nd ed, 2001) <http://www.bellona.dk/pdf/publications//bibliography_2nd.pdf>.

53 Operational Guidelines 1997, UN Doc WHC 97/2, para 7. 54 Anita Smith, ‘East Rennell World Heritage Site: Misunderstandings, Inconsistencies and Opportunities in the Implementation

of the World Heritage Convention in the Pacific Islands’ (2011) 17(6) International Journal of Heritage Studies 592, 599. 55 The Bureau of the WH Committee coordinates the Committee’s work. It comprises seven of the 21 State parties who are

members of the Committee. See UNESCO, The World Heritage Committee <http://whc.unesco.org/en/committee/>. 56 Information on Tentative Lists and Examination of Nominations of Cultural and Natural Properties to the List of World

Heritage in Danger and the World Heritage List, WHC 22nd sess, UN Doc WHC-98/CONF.203/10Rev (29 November 1998) 3.

57 Letter from Moses K Mose, Permanent Secretary of Solomon Islands Ministry of Commerce, Employment and Tourism, to Bernd von Droste, Director of the UNESCO World Heritage Centre (1 September 1998) attached as supplementary information to Elspeth J Wingham, Nomination of East Rennell, Solomon Islands by the Government of Solomon Islands for Inclusion in the World Heritage List Natural Sites (1997) 1.

58 East Rennell Statement of OUV, UN Doc WHC-12/36.COM/8E, 55-56. 59 Operational Guidelines 2016, UN Doc WHC.16/01, para 154. 60 East Rennell Statement of OUV, UN Doc WHC-12/36.COM/8E, 55. 61 Smith, above n 54, 605.

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confused about how their land could be inscribed on the WH List ‘without them’,62 which

has fuelled misunderstanding of and disenchantment with WH. This is contributing to

WH not being highly valued at the local level, creating challenges for its protection (see

6.3.3 for further discussion).

Some East Rennellese have expressed interest in the WH listing being expanded to

encompass their cultural heritage values.63 This would require the preparation and

submission of a new nomination dossier that establishes that the site meets one or more

cultural criteria. There is precedent for this. Both Uluru-Kata Tjuta National Park in

Australia and the Tongariro National Park in New Zealand were initially listed as natural

WH sites and subsequently re-listed as cultural landscapes. However, East Rennell is

unlikely to be re-nominated in the short term, given it would require substantial resources

and WH is not a national priority in Solomon Islands. In any event, no study has been

conducted to demonstrate that East Rennell would qualify for listing as a cultural

landscape or mixed site. As such, for the foreseeable future, the disparity between the

global and local significance of East Rennell is likely to remain. Efforts to protect the site

must recognise this, and try to accommodate both global and local values and objectives

(see 9.2.1).

5.3.2 The boundaries of the World Heritage Site: Linkages between East and West

Rennell

The provisions in the 1997 Operational Guidelines concerning site boundaries and buffer

zones were similar to those in the current (2016) version of the document64 (which were

explained in 4.4.3(D)). In 1997, a site had to meet the ‘conditions of integrity’, which

varied depending on the OUV criterion upon which the site was nominated.65 As East

Rennell was nominated based on the criterion in paragraph 44(a)(ii), to meet the

conditions of integrity it had to be of ‘sufficient size to demonstrate the key aspects of

processes that are essential for the long-term conservation of the ecosystems and the

biological diversity they contain.’66 The 1997 Operational Guidelines also stated that a

62 Ibid 597. 63 Laurie Wein, East Rennell World Heritage Site Management Plan (Solomon Islands National Commission for UNESCO,

2007) 14. 64 Operational Guidelines 2016, UN Doc WHC.16/01. 65 Operational Guidelines 1997, UN Doc WHC 97/2, para 44. 66 Ibid para 44(b)(ii).

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site’s boundaries should reflect the ‘spatial requirements of habitats, species, processes

or phenomena’ that provide the basis for its nomination.67 In addition, if necessary for the

proper conservation of the property, a buffer zone around the property should be

established.68

The western boundary of the East Rennell WH site is the border between provincial wards

two and three on Rennell island.69 No buffer zone around the site exists. Notwithstanding

this, the nomination dossier contended that the boundaries were sufficient on the grounds

that the site contained the habitats required to maintain its flora and fauna, and there were

no large-scale development plans for the island.70 IUCN recommended that the site be

listed, despite several of its reviewers noting that the area was too small to ensure the

long-term survival of endemic birds.71 In support of its recommendation, IUCN stated

that the major feature of the site (Lake Tegano) is in East Rennell, and in any event the

nomination of the entire island was not feasible (because the listing of West Rennell was

not supported by that area’s landowners).72 The record of the Committee’s decision to list

the site does not detail any discussion about boundaries, so it is unclear whether the

Committee considered that the requirements were met or should be waived.

Several recent reports confirm that East Rennell is too small to ensure the long-term

conservation of its OUV. For example, an assessment of the state of conservation of the

WH site stated that activities such as logging and mining in West Rennell could affect the

site’s OUV through habitat fragmentation, the introduction of invasive species, impacts

on groundwater hydrology, and a decrease in the ecological resilience of the island to

tropical cyclones.73 In accordance with these findings, IUCN now recognises that

integrated management of the entire island is required to protect the site’s WH values.74

Therefore, the statement in the nomination dossier that East Rennell contains all of the

habitats required to maintain its biodiversity is no longer accepted.

67 Ibid para 44(b)(vi). 68 Ibid para 17. 69 Wingham, above n 13, 38. 70 Ibid. 71 IUCN Evaluation of East Rennell Nomination 81. 72 Ibid. 73 Turton, above n 44, 7-8, 10-11. See also Dingwall, above n 30, 16; East Rennell Statement of OUV, UN Doc WHC-

12/36.COM/8E, 56; IUCN, Natural World Heritage Sites: The Pacific’s Challenges (13 June 2014) <https://www.iucn.org/content/natural-world-heritage-sites-pacific%E2%80%99s-challenges>; International Centre on Space Technologies for Natural and Cultural Heritage, Report of the Technical Consultation Meeting on East Rennell World Heritage Site in Danger, Sanya, Hainan Province, China, 1 – 2 February 2016 (2016) 21.

74 IUCN, World Heritage Outlook: Conserving Our Natural Wonders – East Rennell (21 July 2014) <http://www.worldheritageoutlook.iucn.org/search-sites/-/wdpaid/en/168242>.

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As will be explained in later chapters, many of the threats to the WH site arise from

activities in West Rennell, which the East Rennellese people have little control over and

which the SIG only loosely regulates, in part because of its reverence for the rights of the

West Rennellese landowners. The fact that the protection of East Rennell requires the

regulation of activities in West Rennell can be related back to the Committee’s decision

to list the site notwithstanding its non-compliance with the boundary and buffer zone

provisions. As previously noted, these provisions can be difficult to comply with,

particularly for a site under customary tenure (see 4.3.3(D)). Consequently, in some

circumstances it may be appropriate for them to be applied flexibly, to accommodate the

listing of such sites. However, those issues and their implications cannot be ignored.

When a site is nominated, the proposed boundaries should be scrutinised, not only in

terms of their compliance with the Operational Guidelines, but also to identify any

challenges they present for the site’s long-term protection.

5.3.3 The protection and management of East Rennell under customary and State

law

The Committee has amended the management and protection requirements for WH listing

in the Operational Guidelines several times (see 4.3.3). In 1997, the Operational

Guidelines stated that a nominated natural site should have legislative, regulatory or

institutional protection.75 In 1998, at the same meeting at which East Rennell was

inscribed on the WH List, the Committee amended the Operational Guidelines to state

that natural sites under ‘traditional’ protection could qualify for WH listing.76 As

explained below, this change facilitated the listing of East Rennell, which was nominated

on the basis that it was protected under customary law (see (A)).77 It was anticipated that

this protection would be strengthened through the development of a management plan

(see (B)) and legislation (see (C)).78 It appears however that the site was inscribed without

a clear understanding of how this regime would protect the site’s OUV.

75 Operational Guidelines 1997, UN Doc WHC 97/2, para 44(b)(vi). 76 WHC Res CONF 203 XIV.3, WHC 22nd sess, UN Doc WHC-98/CONF.203/18 (29 January 1999) 56. 77 Wingham, above n 13, 38, 45. 78 Ibid.

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(A) Customary protection and management

East Rennell’s nomination dossier contains little information concerning the site’s

customary protection. It states that the use and management of flora and fauna is regulated

through the customary land tenure system and land use practices of the East Rennellese.79

These practices include seasonal bans on hunting and fishing, tambus (prohibitions) on

the killing and eating of particular species, and the exclusion of outsiders from communal

territory.80 The dossier contends that these practices were developed to ensure

‘sustainable and continued use of natural resources into the future’.81 It also notes that all

major land use decisions are made by the area’s chiefs, who make up the Council of

Chiefs, which is headed by a Paramount Chief.82 However, the dossier does not document

the land tenure system or provide details of traditional practices, such as which species

they relate to or the extent to which they are complied with. It also provides no basis for

the assertion that customary practices are conducive to the conservation of natural

resources. Furthermore, it does not comment on the strength of customary governance,

including the chiefs’ ability to ensure compliance with traditional practices. As such, the

dossier contains little information upon which the IUCN and the Committee could assess

the scope and strength of the site’s customary protection.

While IUCN recommended that East Rennell be listed, it also expressed concern about

the dossier’s lack of detail. It noted that customary ownership can provide effective

protection, but this presumes that customary practices are favourable to conservation and

that ‘traditional ownership powers and community support are not being eroded’.83 This

is an assumption that should not be made in the Pacific. As explained in 2.4.2, customary

practices in some places were developed to ensure the sustainable use of resources, but

the motivation behind other practices included the allocation of resources, and customary

and religious beliefs. Furthermore, some customary systems have been significantly

influenced by outside contact with the islanders, limiting their ability to contribute to WH

protection.

79 Ibid 45. 80 Ibid. 81 Ibid. 82 Ibid 5. 83 IUCN Evaluation of East Rennell Nomination 81.

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The record of the Committee’s decision to inscribe East Rennell notes that Committee

members viewed the nomination as ‘breaking new ground’, and after a ‘considerable

debate’ on customary protection they agreed to support it.84 The document does not

specify the substance of this debate. However, given the lack of detail in the nomination

dossier, it is unlikely that the Committee had sufficient information to discuss the

specifics of East Rennell’s customary protection. The only recorded dissent to the

Committee’s decision came from the delegate from Thailand, who noted that customary

tenure does not guarantee effective protection. The Thai delegate also opposed the listing

on the basis that it did not comply with the requirements in the 1997 Operational

Guidelines.85 This dissent was technically valid because the Committee’s decision to

amend the Operational Guidelines to allow for the listing of natural sites under customary

protection was made after its decision to list East Rennell, albeit at the same meeting.86

(B) Management plan

The 1997 Operational Guidelines said that sites nominated for WH listing should have a

management plan, but if they did not the State party should indicate when a plan would

be prepared and how it would be resourced.87 While East Rennell had no management

plan when it was nominated, the dossier stated that a plan based on customary practices

would be prepared.88 It contended that the plan would have the status of customary law

when approved by the Council of Chiefs, so it would strengthen customary protection.89

In its review of the dossier, IUCN commented that in the absence of any document

detailing objectives and management prescriptions for the site, it was impossible to

confirm how customary practices would provide any protection.90 Presumably in

response to that comment, a document entitled ‘Resource Management Objectives and

Guidelines’ was attached as supplementary information to the dossier.91 While the

document set out broad resource management guidelines, it did not contain any new

information about customary protection, instead highlighting that further research on

84 WHC Res CONF 203 VIII.A.1, WHC 22nd sess, UN Doc WHC-98/CONF/203/18 (29 January 1999) 25, 26. 85 Ibid. 86 WHC Res CONF 203 XIV.3, WHC 22nd sess, UN Doc WHC-98/CONF.203/18 (29 January 1999) 56. 87 Operational Guidelines 1997, UN Doc WHC 97/2, para 44(b)(v). 88 Wingham, above n 13, 38. 89 Ibid. 90 IUCN Evaluation of East Rennell Nomination 82. 91 Elspeth J Wingham, Resource Management Objectives and Guidelines for East Rennell, Solomon Islands (May 1998),

attached as attachment 1 to Elspeth J Wingham, Nomination of East Rennell, Solomon Islands by the Government of Solomon Islands for Inclusion in the World Heritage List Natural Sites (1997).

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traditional practices was required.92 IUCN commented that while the document was a

good beginning for a management regime, it was unclear whether the East Rennellese

would support it.93 Despite these reservations, both IUCN and the WH Committee were

satisfied that the dossier met the requirements in the 1997 Operational Guidelines.94 It

therefore appears that the site was listed without a clear understanding of when a

management plan would be prepared, how it would be resourced, and importantly how it

would relate to and strengthen customary protection.

(C) Heritage protection legislation

The nomination dossier stated that the SIG would enact a World Heritage Cultural and

Natural Sites Act,95 but it did not specify what form this legislation would take or how it

would interact with customary law. A World Heritage Properties Conservation Bill was

prepared.96 However, by the time IUCN finalised its review of the nomination dossier, it

had received advice that the SIG was not pursuing this legislation.97 IUCN expressed

concern about this, noting that protection legislation would reinforce customary rights

and ensure some legal commitment to WH at the national level.98 It also recognised that

implementing the law would be challenging, stating that the land tenure of Rennell

‘makes it difficult (but not impossible) for national government legislation to be effective

in terms of management.’99 This reflects the following comment made by a representative

of the SIG to the WH Centre:

It should be emphasized that the proposed East Rennell World Heritage site is in customary land ownership and the long term wise management of the site will depend on the commitment made by the local people.100

The Committee accepted that East Rennell could be listed notwithstanding the lack of

WH protection legislation, however it recommended that such a law be developed. As

demonstrated in chapters 6 - 8, the SIG never passed the World Heritage Properties

92 Ibid 1, 19. 93 IUCN Evaluation of East Rennell Nomination 83. 94 WHC Res CONF 203 VIII.A.1, WHC 22nd sess, UN Doc WHC-98/CONF/203/18 (29 January 1999) 25, 26. 95 Wingham, above n 13, 38. 96 Ben Boer, ‘Solomon Islands’ in Ben Boer (ed), Environmental Law in the South Pacific: Consolidated Report of the Reviews

of Environmental Law in the Cook Islands, Federated States of Micronesia, Kingdom of Tonga, Republic of the Marshall Islands and Solomon Islands (South Pacific Regional Environment Programme and IUCN Environmental Law Centre, 1996) 189, 193; Ben Boer, Solomon Islands: Review of Environmental Law (SPREP, 1993) 11.

97 IUCN Evaluation of East Rennell Nomination 83. 98 Ibid. 99 Ibid 83. 100 Letter from Moses K Mose, Permanent Secretary of Solomon Islands Ministry of Commerce, Employment and Tourism, to

Bernd von Droste, Director of the UNESCO World Heritage Centre (1 September 1998) attached as supplementary information to Elspeth J Wingham, Nomination of East Rennell, Solomon Islands by the Government of Solomon Islands for Inclusion in the World Heritage List Natural Sites (1997) 2.

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Conservation Bill, and East Rennell is still only weakly protected under State law.

Furthermore, complex issues concerning the relationship between heritage protection

legislation and customary law remain to be addressed.

The analysis in this section has shown that East Rennell was listed without a thorough

understanding of the site’s protection regime. This may be because prior to its nomination,

the only sites inscribed on the WH List based on customary protection were ‘cultural

landscapes’,101 which had different heritage values and management requirements.102

Consequently, there were no analogous precedents against which the East Rennell

nomination could be compared. In addition, the Convention bodies may have been

tempted to support the site’s listing because of their desire to improve Pacific

representation on the WH List, in accordance with the Global Strategy, which the

Committee had then recently adopted.

Whatever the reason, it would have been beneficial for a more comprehensive assessment

of the site’s protection to have been conducted at the time of nomination. In the future,

such an assessment should consider the scope of customary laws, the strength of

customary governance, and if and how customary protection can be supplemented by a

management plan and/or legislation. Greater understanding of these issues at the

nomination stage could have two key benefits. Firstly, it could temper the expectations of

the Convention bodies concerning the level of protection that the site will enjoy. As

demonstrated in subsequent chapters, customary tenure presents unique challenges for

WH protection not experienced at sites under State ownership and control. The

Convention bodies’ enthusiasm to support customary protection should not translate into

an assumption that customary landowners or the relevant State parties are willing and

able to protect WH to the same standard as State-owned or controlled sites. A thorough

assessment of the site’s protection regime at the nomination stage may assist all

stakeholders to agree upon feasible and appropriate conservation objectives. Secondly, it

might help the State parties and the Convention bodies to anticipate and address

challenges concerning the site’s protection.

101 Tongariro National Park (New Zealand), Uluru-Kata Tjuta National Park (Australia0 and the Rice Terraces of the Philippine

Cordilleras (The Philippines). 102 Smith, above n 54, 600.

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5.4 Solomon Islands’ implementation of the World Heritage

Convention after the inscription of East Rennell

5.4.1 Solomon Islands’ implementation of the World Heritage Convention

Soon after East Rennell was listed, civil conflict (commonly referred to as ‘the tensions’)

commenced in Solomon Islands.103 Beginning in late 1998, regular skirmishes between

armed militia from Guadalcanal and Malaita occurred in and around Honiara.104 The

fighting escalated in 2000, when militants from Malaita seized control of Honiara and the

Prime Minister was forced to resign.105 Despite attempts by Australia and New Zealand

to broker peace talks, the conflict continued, and Solomon Islands’ central and provincial

governments effectively ceased to function. The tensions caused the country’s Gross

Domestic Product to fall by 24%, and by 2002 the government was insolvent.106

The violence caused by the tensions mainly occurred on Guadalcanal and Malaita,

allowing people on other islands (including Rennell) to continue to live subsistence

lifestyles,107 pursuant to their customary legal systems.108 However, as the SIG was

dysfunctional during this period, it was not involved with any WH activities and it had

little communication with the Committee or the East Rennellese people.109 The outbreak

of the tensions also led to the cancellation of the New Zealand’s WH program in Solomon

Islands, and a Japanese funded project to assess Rennell’s cultural values.110 There was

also little activity concerning East Rennell at the international level, with the Committee

making no resolutions relating to the site until 2003.

103 For analysis of the tensions, see generally Judith Bennett, Roots of Conflict in Solomon Islands - Though Much is Taken, Much

Abides: Legacies of Tradition and Colonialism, State, Society and Governance in Melanesia Discussion Paper (Australian National University, 2002); Sinclair Dinnen, ‘State-Building in a Post-Colonial Society: The Case of Solomon Islands’ (2008) 9 Chicago Journal of International Law 51; Sinclair Dinnen, ‘The Solomon Islands Intervention and the Instabilities of the Post-Colonial State’ (2008) 20(3) Global Change, Peace and Security (formerly Pacific Review: Peace, Security and Global Change) 338; Clive Moore, ‘Pacific View: The Meaning of Governance and Politics in the Solomon Islands’ (2008) 62(3) Australian Journal of International Affairs 386; John Braithwaite, Sinclair Dinnen, Matthew Allen, Valerie Braithwaite and Hilary Charlesworth, Pillars and Shadows: Statebuilding as Peacebuilding in Solomon Islands (ANU E Press, 2010); Matthew G Allen, ‘Land, Identity and Conflict on Guadalcanal, Solomon Islands’ (2012) 43(2) Australian Geographer 153.

104 See, eg, Dinnen, ‘State-Building in a Post-Colonial Society’, above n 103, 61. 105 See, eg, Moore, above n 103, 387. 106 Daniel Gay (ed), Solomon Islands Diagnostic Trade Integration Study 2009 Report (Solomon Islands Government, 2009) 19. 107 See, eg, Moore, above n 103, 387. 108 Graham Baines, Beneath the State: Chiefs of Santa Isabel, Solomon Islands, Coping and Adapting, State, Society and

Governance Working Paper 2014/2 (Australian National University, 2014) 3. 109 Salamat Ali Tabbasum and Paul Dingwall, Report on the Mission to East Rennell World Heritage Property and Marovo

Lagoon, Solomon Islands, 30 March – 10 April 2005 (IUCN and World Heritage Centre, 2005) 5; State of Conservation of Properties Inscribed on the World Heritage List, WHC 22nd sess, UN Doc WHC-03/27.COM/7B (12 June 2003) 11 (East Rennell, Solomon Islands) 11; Wein, above n 63, 7.

110 State of Conservation of Properties Inscribed on the World Heritage List, WHC 22nd sess, UN Doc WHC-03/27.COM/7B (12 June 2003) 11 (East Rennell, Solomon Islands) 11.

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By mid-2003, Australia saw the situation in Solomon Islands as a threat to Australian and

regional security,111 and the Regional Assistance Mission to the Solomon Islands

(RAMSI) was formed to restore law and order. Although RAMSI successfully quelled

the fighting, State-building in the post-tensions era has been difficult, and the country

continues to face significant political, economic and social issues (see 2.4.1). This helps

explain why although the SIG has taken some steps to re-engage with the Convention

regime, its involvement remains limited.

In 2003, the SIG established the Solomon Islands National Commission, to manage its

programs associated with the United Nations Educational, Scientific and Cultural

Organisation (UNESCO) including WH.112 The National Commission later set up a sub-

commission to co-ordinate the SIG’s WH activities.113 However, inquiries the author

made to the SIG in January 2017 suggest that the sub-commission has been inactive for

several years. It is expected to begin functioning again in March 2017 when new sub-

commission members are appointed.

For several years there was confusion about which Ministry within SIG was responsible

for WH matters.114 The situation improved in 2011, when the government formally

confirmed that responsibility was shared between the Ministry of Culture and Tourism,

and the Ministry of Environment, Climate Change, Disaster Management and

Meteorology.115 To date, the Ministry of Environment has assumed primary responsibility

for East Rennell, because it is a natural WH site. Ministry of Environment staff have been

involved with some missions to East Rennell116 and stakeholder workshops.117 However,

they have had little involvement with the on-the-ground management and protection of

the site. This reflects the fact that WH remains a low priority for the SIG.118

111 See, eg, Dinnen, ‘State-Building in a Post-Colonial Society’, above n 103, 63. 112 Interview with an officer in the Ministry of Education, who was formerly the focal point for World Heritage within the

Solomon Islands National Commission for UNESCO (Honiara, 28 July 2013). 113 Interview with an officer in the Ministry of Education, who was formerly the focal point for World Heritage within the

Solomon Islands National Commission for UNESCO (Honiara, 28 July 2013); Solomon Islands Government, State Party Report on the State of Conservation of the East Rennell World Heritage Area (Solomon Islands) (SIG, 2012) 3.

114 Tabbasum and Dingwall, above n 109, 4; Interview with an officer in the Ministry of Culture (Honiara, 26 July 2013). 115 Letter from Aseri Yalangono, Deputy Secretary General of National Commission for UNESCO Solomon Islands to the

Director of the UNESCO World Heritage Centre (31 August 2011) 1. 116 For example, staff from the Solomon Islands Ministry of Environment and the United Nations Development Programme

conducted a field mission to East Rennell in 2012. 117 For example, the Ministry of Environment hosted stakeholder meetings (which the author was involved with) concerning the

site in August and December 2012. 118 Salamat Ali Tabbasum, ‘Developing the Solomon Islands Tentative List’ in Anita Smith (ed), World Heritage in a Sea of

Islands: Pacific 2009 Programme, World Heritage Papers 34 (UNESCO, 2012) 34, 34.

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The government has not yet developed any policies or strategic documents specifically

concerning its implementation of the Convention.119 The development of a national WH

policy could be beneficial as it may raise the profile of the Convention within the

government and clarify the roles of the Ministries and other stakeholders in its

implementation. However, it is notable that some existing policies already contain

provisions relating to WH conservation. For example, while the Nasinol Policy

Framework Blong Kalsa 2012 (the National Cultural Policy Framework) does not refer

to WH, it includes policy goals regarding the protection of cultural and historical

landscapes.120 Most relevantly for East Rennell, the SIG recently adopted the National

Biodiversity Strategic Action Plan 2016 – 2020,121 which appears to be the first national

strategy to refer to the Convention. While this Action Plan was adopted by the government

primarily to comply with its obligations under the Convention on Biological Diversity,122

it recognises the synergies between biodiversity and heritage protection.123 Thus, one of

the many actions specified in the Action Plan to achieve biodiversity conservation is the

development of a new and effective management plan for East Rennell by 2017.124 The

previous (2009) version of the National Biodiversity Strategic Action Plan125 did not refer

to the Convention. The incorporation of references to WH in the 2016 Action Plan could

therefore indicate that the SIG’s commitment to WH conservation is increasing.

However, given that East Rennell does not yet have a new management plan (see 6.4), it

remains to be seen whether the adoption of the 2016 Action Plan will lead to improved

protection of the site.

The SIG has also not enacted a World Heritage Protection Act. It does however have

some legislation that could contribute to the conservation of the site. This legislation is

referred to in 6.5.1, and analysed in chapters 7 and 8.

119 Cf Fiji, which has developed a World Heritage Policy. See Republic of Fiji, World Heritage Policy of Fiji: Heritage Area

Conservation for Sustainable Development <http://www.culture.gov.fj/wp-content/uploads/2013/08/21.pdf>). Among other things, the policy sets out the role of the Fijian Government in implementing the WH Convention (para 4.0) and specific policy measures designed to ensure that the State party complies with its Convention obligations (paras 6.0-11.0).

120 Secretariat of the Pacific Community and the Division of Culture (Solomon Islands Ministry of Culture and Tourism), Solomon Islands Nasinol Policy Framework blong Kalsa (2012) 15

121 Solomon Islands Ministry of Environment, Climate Change, Disaster Management and Meteorology, National Biodiversity Strategic Action Plan 2016 – 2020 (2016).

122 Ibid ii; Convention on Biological Diversity, opened for signature 5 June 1992, 1760 UNTS 79 (entered into force 29 December 1993) (‘Convention on Biological Diversity’).

123 Solomon Islands Ministry of Environment, Climate Change, Disaster Management and Meteorology, National Biodiversity Strategic Action Plan 2016 – 2020 (2016) 54.

124 Ibid 101. 125 Solomon Islands Ministry of Environment, Conservation and Meteorology, National Biodiversity Strategic Action Plan 2009

(2009).

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5.4.2 Solomon Islands’ engagement with the World Heritage Convention bodies

State parties have a duty to report to the WH Committee on their implementation of the

Convention.126 The Committee has repeatedly requested that Solomon Islands submit

reports127 but few such requests have been complied with.128 The SIG’s failure to comply

is understandable, given the limited funds and personnel it has to dedicate to WH matters.

As a conservation officer within the Ministry for Environment stated during the

consultation process, Solomon Islands is ‘flooded with international obligations’,129 so

the Convention is but one of the many treaties that Ministry staff must administer. It is

also understandable that Solomon Islands is not always represented at WH Committee

annual meetings.130 As noted in the Pacific World Heritage Action Plan 2016, the

isolation and resource constraints of Pacific Island States impede their ability to

participate in global forums.131

A consequence of this is that the Committee often does not have information about

Solomon Islands’ perspective when making its decisions. This is likely to be contributing

to the wide gap that exists between the actions that the Committee is seeking from

Solomon Islands, and those that the State party is willing and able to undertake (see 6.2).

An example of how input from a State party can influence the Committee’s decision-

making is the resolution made by the Committee concerning East Rennell at its 37th

session in 2013. The draft decision being considered at that meeting called upon Solomon

Islands to ban all logging on Rennell island.132 In her submission to the Committee, the

delegate from Solomon Islands sought the deletion of that request because (at that time)

126 World Heritage Convention art 29; Operational Guidelines 2016, UN Doc WHC.16/01, para 199. 127 WHC Res 29 COM 7B.10, WHC 29th sess, UN Doc WHC-05/29.COM/22 (9 September 2005) 45, 46; WHC Res 31 COM

7B.21, WHC 31st sess, UN Doc WHC-07/31.COM/24 (31 July 2007) 58, 58; WHC Res 33 COM 7B.19, WHC 33rd sess, UN Doc WHC-09/33.COM/20 (20 July 2009) 68, 68; WHC Res 34 COM 7B.17, WHC 34th sess, UN Doc WHC-10/34.COM/20 (3 September 2010) 71, 71; WHC Res 36 COM 7B.15, WHC 36th sess, UN Doc WHC-12/36.COM/19 (June – July 2012) 63, 64; WHC Res 37 COM 7B.14, WHC 37th sess, UN Doc WHC-13/37.COM/20 (5 July 2013) 68, 69; WHC Res 38 COM 7A.29, WHC 38th sess, UN Doc WHC-14/38.COM/16 (7 July 2014) 39, 40; WHC Res 39 COM 7A.16, WHC 39th sess, UN Doc WHC-15/39.COM/19 (8 July 2015) 30, 31; WHC Res 40 COM 7A.49, WHC 40th sess, UN Doc WHC-16/40.COM/19 (15 November 2016) 68, 69.

128 Solomon Islands only submitted State party reports in 2012, 2013 and 2014. See Solomon Islands Government, State Party Report on the State of Conservation of the East Rennell World Heritage Area (Solomon Islands) (SIG, 2012); Solomon Islands Government, State Party Report on the State of Conservation of the East Rennell World Heritage Area (Solomon Islands) (SIG, 2013); Solomon Islands Government, State Party Report on the State of Conservation of the East Rennell World Heritage Area (Solomon Islands) (SIG, 2014).

129 Interview with a conservation officer in the Ministry of Environment (Honiara, 2 August 2013). 130 For example, no representative of Solomon Islands attended the WH Committee annual meetings in 2014, 2015 or 2016. 131 Pacific World Heritage Action Plan 2016 – 2020 (2016) 3. 132 Draft WHC Res 37 COM 7B.14, WHC 37th sess, UN Doc WHC-13/37.COM/7B (3 May 2013) (East Rennell, Solomon

Islands) 29, 32.

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no study had confirmed that logging in West Rennell would affect the WH site. The

delegate suggested that the Committee instead call for an assessment of the impacts of

logging in West Rennell.133 The Committee accepted this amendment and the draft

decision was amended accordingly.134 It may not have made this change if the delegate

had not been at the Committee meeting to argue Solomon Islands’ position.

The principle of international cooperation underpins the Convention regime (see 4.2.1).

However, the extent to which a State party and others work cooperatively will be

influenced by whether they share a common vision for how a site is to be protected. As

the analysis in the remainder of this thesis will demonstrate, at present there is significant

variation between the actions that the Convention bodies consider are necessary to protect

the OUV of East Rennell, and the SIG’s approach to WH conservation. It is argued that

if cooperation between the State party and the Convention bodies is to improve, the chasm

between their respective positions must be narrowed. Increasing the dialogue between the

SIG and the Committee could assist with this. This would require Solomon Islands to

make WH a greater priority, but other stakeholders could assist by encouraging and

supporting the State party to submit reports, and investigating ways for it to participate in

Convention meetings, even if it is not able to send a representative. The Committee could

also assist by ensuring that its resolutions concerning East Rennell fully reflect the

modern approach to WH protection, and are appropriate for the Solomon Islands context

(see 9.2.4 and 9.3.1).

5.4.3 Future World Heritage Sites in Solomon Islands?

Solomon Islands’ Tentative List was submitted to the Committee in 2008 and includes

two sites. The first is the ‘Marovo-Tetepare Complex’, a mixed site encompassing large

marine areas and several islands in the west of the country.135 It includes Marovo Lagoon,

which was considered for WH nomination shortly after Solomon Islands signed the

Convention (see 5.2.1). That site is said to have OUV because of its outstanding marine

and terrestrial environments, which are connected to the cultural identity and spiritual

lives of the local peoples.136 The other site on the Tentative List is referred to as ‘Tropical

133 Solomon Islands Government, Statement by Solomon Islands: East Rennell Property – Delivered by Agnetha Vave-Karamui,

SIG Delegate to the WHC Meeting, Phnom Penh Cambodia on 18 June 2013 (2013). 134 WHC Res 37 COM 7B.14, WHC 37th sess, UN Doc WHC-13/37.COM/20 (5 July 2013) 68. 135 UNESCO, Marovo – Tetepare Complex <http://whc.unesco.org/en/tentativelists/5414/>. 136 Ibid.

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Rainforest Heritage of Solomon Islands’, and comprises rainforest areas in Makira-

Ulawa, Choiseul, Western and Central provinces. It has been included in the Tentative

List based on its outstanding natural environment, in particular because of the many

unique bird species found there.137

The difficulties SIG is experiencing in relation to East Rennell are likely to dissuade the

government from nominating these sites, at least in the short term. However, even if they

are not listed, this research has some relevance to those sites. Like East Rennell, they have

been identified as potential candidates for WH listing on the basis of natural WH criteria

only.138 In addition, their proposed protection regimes involve customary systems

supplemented by other initiatives, including management plans and legally-recognised

protected areas.139 Therefore, many of the issues identified in chapters 6 – 8 will apply to

those sites, regardless of whether they are inscribed on the WH List.

5.5 Conclusion

The listing of East Rennell was a milestone in the development of the Convention regime,

in terms of the recognition of Pacific heritage and customary protection of WH sites.

However, as this chapter has demonstrated, the listing process raises issues which could

serve as lessons for other places.

Firstly, there is a wide gap between the site’s WH values and its significance to the East

Rennellese people. Within the Convention regime, East Rennell is recognised purely

because of the rich biodiversity and endemic species it hosts, despite its cultural

significance to the local people. The East Rennellese are confused as to how their land

could be listed ‘without them’,140 and are disappointed that the listing has not generated

substantial economic benefits. The variation between the global and local value of the site

fuels the local population’s disenchantment with WH, which in turns limits the SIG’s

willingness to implement conservation measures. This presents a challenge for the site’s

protection under both customary and State law. Measures to protect the site’s OUV must,

to the extent possible, be aligned with local priorities and aspirations.

137 UNESCO, Tropical Rainforest Heritage of Solomon Islands <http://whc.unesco.org/en/tentativelists/5416/>. 138 This is potentially because no representative of ICOMOS was involved with the preparation of Solomon Islands’ Tentative

List. 139 Ibid; UNESCO, above n 135. 140 Smith, above n 54, 597.

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Secondly, East Rennell did not strictly meet the boundary requirements for WH listing,

because of the linkages between the forests across the island. In addition, before the

Committee inscribed the site there was little assessment of how customary ownership

would protect the site’s OUV, or how the management plan and State legislation would

interact with customary laws. While it is not suggested here that East Rennell should not

have been listed, in future more attention should be paid to these issues at the nomination

stage. This could help all stakeholders to agree on feasible and appropriate conservation

objectives, and to anticipate and address issues that arise.

Finally, East Rennell was listed before Solomon Islands had developed the administrative

structures and legal instruments required to implement the Convention. The SIG must

now try to ‘catch up’ by developing measures that ideally should have been in place

before the site was listed. This is difficult, in part because the government has limited

resources to dedicate to the task. Consequently, as will be demonstrated in the remainder

of this thesis, almost 20 years after East Rennell was listed Solomon Islands still does not

have a strong legal framework for the site’s conservation. The SIG also has few resources

to dedicate to State party reporting and attending WH Committee meetings, which is

limiting its engagement with the Convention regime.141 While this is understandable, it is

contributing to the wide variation between the actions that the Convention bodies are

calling for and those being undertaken by the SIG. Improving the dialogue between the

government and the Committee could help bridge this gap.

The next three chapters analyse the protection of East Rennell under law. That analysis

begins with an examination of the threats to the site’s OUV and the scope for them to be

addressed through customary and State legal systems.

141 For discussion of the relationship between States’ delegations to WH Committee meetings and representation on the WH List,

see generally Lynn Meskell, Claudi Liuzza and Nicholas Brown, ‘World Heritage Regionalism: UNESCO from Europe to Asia’ (2015) 22 International Journal of Cultural Property 437.

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Chapter 6: The protection of East Rennell under customary and State legal systems

6.1 Introduction

It is now widely recognised that both customary and State legal systems can contribute to

the protection of World Heritage (WH) in a legally plural country. However, there has

been little analysis of these systems and their interactions in relation to the

implementation of the World Heritage Convention1 (the Convention) by Solomon

Islands.2 This chapter explores the scope for customary and State legal systems to address

the threats to the WH values of East Rennell, and identifies issues that influence and

restrict that potential.

The chapter begins with an examination of the state of conservation of East Rennell and

the threats that led to its inclusion in the List of WH in Danger (6.2). As East Rennell is

a natural WH site, and is unlikely to be re-nominated as a cultural or mixed site in the

foreseeable future, this analysis is restricted to conservation of the area’s natural

environment.3 It demonstrates that the source and nature of the threats vary, so a range of

measures will be required to address them.

The site’s protection under customary law is then assessed (6.3), based on existing

literature supplemented by the author’s observations gained through working at the site.

The analysis considers the scope of customary laws relevant to WH protection (6.3.1) and

the strength of customary governance (6.3.2). Broader issues influencing the operation of

the customary legal system, including the priorities and aspirations of the East Rennellese

people, are also explained (6.3.3). It will be shown that while the customary system

regulates rights to land and resources in East Rennell, it is incapable of dealing with many

threats to the site’s OUV, so additional management measures are required.


1037 UNTS 151 (entered into force 17 December 1975) (‘World Heritage Convention’). 2 See the literature review at 1.5. 3 This scoping issue was explained in 1.3.2.

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This chapter continues with a critical analysis of the current management plan for East

Rennell4 (6.4). It is argued that vesting responsibility for implementation of the plan with

the East Rennellese people has allowed them to retain substantial control over their land

and resources. However, the lack of any legal basis for the plan under custom or State

law makes implementation entirely voluntary. To date, few management measures have

been executed, in part because the East Rennellese people have little interest in the plan,

and have been given limited financial and technical support.

The chapter ends with an overview of State legal protection of East Rennell (6.5). It

identifies several existing Acts that could be utilised to help address the threats to the site,

as well as some significant gaps in Solomon Islands’ legislative framework (6.5.1). It then

explores the Solomon Island government’s (SIG’s) approach to WH conservation (6.5.2).

Based on empirical research, it demonstrates that people working for the SIG consider

that the government’s role is to support the East Rennellese people to protect the site,

rather than to restrict their use and development of the area. This perception limits the

SIG’s willingness to comply with the Committee’s requests concerning the site. It is

argued that future Committee resolutions that do not acknowledge that perception are

unlikely to be complied with.

6.2 The threats to the World Heritage values of East Rennell

For several years after East Rennell was listed, the International Union for the

Conservation of Nature (IUCN) and the Committee considered that the site was subject

to few direct threats and its heritage values were relatively intact.5 However, over time

the threats to the site increased, prompting IUCN to conduct a reactive mission to the area

in 2012.6 IUCN then contended that the threats were sufficiently serious as to warrant the

site’s inclusion in the List of WH in Danger,7 leading the Committee to inscribe the site

on that list in 2013.8 IUCN now ranks the site’s status as ‘critical’,9 and contends that the

4 Laurie Wein, East Rennell World Heritage Site Management Plan (Solomon Islands National Commission for UNESCO,

2007). 5 IUCN, Evaluations of Nominations of Natural and Mixed Properties to the World Heritage List, WHC 22nd sess (1998) 79,

80 (‘IUCN Evaluation of East Rennell Nomination’); Salamat Ali Tabbasum and Paul Dingwall, Report on the Mission to East Rennell World Heritage Property and Marovo Lagoon, Solomon Islands, 30 March – 10 April 2005 (IUCN and World Heritage Centre, 2005) 5, 11.

6 For the report of this mission, see Paul Dingwall, Report on the Reactive Monitoring Mission to East Rennell, Solomon Islands, 21 – 29 October 2012 (IUCN, 2013).

7 Tabbasum and Dingwall, above n 5, 5, 30. 8 WHC Res 37 COM 7B.14, WHC 37th sess, UN Doc WHC-13/37.COM/20 (5 July 2013) 68. 9 Elena Osipova et al, IUCN World Heritage Outlook 2014: A Conservation Assessment of all Natural World Heritage Sites

(IUCN, 2014) 44.

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conditions required for East Rennell to qualify for WH listing may no longer be in place.10

Recent studies have concluded that the heritage values of East Rennell remain relatively

intact, calling into question IUCN’s dire assessment of the site’s state of conservation. In

2013, Albert et al found that the island’s marine ecosystems are in good condition by

global and regional standards, and support high fish abundance and diversity.11 Similarly,

in 2014, Turton found that the site was in a reasonable state, based on its forest cover, the

abundance of endemic species, the water quality in Lake Tegano, and the condition of the

fringing reef along the coast.12 These studies do however confirm that East Rennell’s

OUV is under threat. As explained below, the key threats are logging and mining (6.2.1),

the over-harvesting of certain species (6.2.2), invasive species (6.2.3), and climate change

(6.2.4).

6.2.1 Logging and mining

Apart from Lake Tegano, Rennell island is mainly covered by dense forest. The forests

across the island are intrinsically linked (see 5.3.2) so logging and mining in either East

or West Rennell threatens the OUV of the WH site.13 Predicted impacts include a

reduction in the forest cover required to maintain bird populations, changes to

groundwater hydrology, a decrease in the resilience of the island to cyclones, and the

introduction of invasive species.14

Rennell island is increasingly attracting logging companies, who find the island’s ‘pencil

cedar’ (Palaquium sp.) most lucrative.15 Although logging is occurring in West Rennell,

forest cover in that part of the island remains above 90%,16 reflecting the fact that

operations began relatively recently,17 and to date they have involved selective rather than

10 IUCN, World Heritage Outlook: Conserving Our Natural Wonders – East Rennell (21 July 2014)

<http://www.worldheritageoutlook.iucn.org/search-sites/-/wdpaid/en/168242>. 11 Simon Albert et al, Survey of the Condition of the Marine Ecosystem within the East Rennell World Heritage Area, Solomon

Islands (University of Queensland, Solomon Islands Marine Ecology Laboratory, Griffith University and WWF-Solomon Islands, 2013) 36.

12 Steve Turton, East Rennell World Heritage Area: Assessment of the State of Conservation of World Heritage Values. Final Field Report (James Cook University, 2014) 10.

13 Dingwall, above n 6, 13-18; Turton, above n 12, 7, 11. 14 Dingwall, above n 6, 4; IUCN, above n 10; Turton, above n 12, 7-8, 10-11, 14; 15 Nils Finn Munch-Petersen, ‘An Island Saved, At Least for Some Time? The Advent of Tourism to Rennell, Solomon Islands’

in Godfrey Baldacchino and Daniel Niles (eds), Island Futures: Conservation and Development Across the Asia-Pacific Region (Springer, 2011) 169, 173.

16 International Centre on Space Technologies for Natural and Cultural Heritage, Report of the Technical Consultation Meeting on East Rennell World Heritage Site in Danger, Sanya, Hainan Province, China, 1 – 2 February 2016 (2016) 1, 18.

17 The first logging license for West Rennell was granted in 2008: Dingwall, above n 6, 13. This is relatively recent compared to other parts of the Solomon Islands. See, eg, Ian Frazer, ‘The Struggle for Control of Solomon Island Forests’ (1997) 9(1)

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clear felling.18 While logging has not yet commenced within the WH site, at least three

applications for licences to log within that area has been filed in recent years.19

Interest in mining on Rennell stretches back to the protectorate era.20 In the lead up to

Solomon Islands’ independence, the British protectorate government was investigating

development options that would allow the new independent nation to support itself

financially.21 Prospecting conducted on Rennell between 1969 and 1977 revealed

substantial reserves of bauxite, but mining did not proceed at that time.22 Prospecting in

West Rennell commenced again in 2014, and since then several companies have been

granted approval to mine there. Some companies have expressed interest in mining within

the WH site, but no such operations have been approved yet.23

The Committee has made several resolutions calling upon Solomon Islands to address the

threats to East Rennell posed by logging and mining.24 Most recently, at its 2016 meeting,

it requested that Solomon Islands mitigate the impacts of existing operations and not

approve further projects until a new management plan is being implemented.25 It also

asked the State party to provide the Committee with information on all mining activities

on the island, including the projects’ Environmental Impact Assessments (EIA) and a

study of their cumulative impacts.26 It appears that to date the SIG has done little to

comply with these requests. Mining operations have been approved, despite the

Committee’s requests. The SIG has provided the Committee with an EIA for only one

Contemporary Pacific 39. Frazer notes that large-scale logging began in the 1960s, and accelerated in the 1980s when companies started to operate on customary land: at 46.

18 International Centre on Space Technologies for Natural and Cultural Heritage, above n 16, 20. 19 These included application 101176, lodged by Joses Tahua dated 9 December 2011. This application (which was ultimately

not successful) was for a licence to extract 80% of the logs from certain forests in West and East Rennell, including the forests covering the entire western half of the WH site. The author was involved with running meetings in Rennellese communities to discuss this application: see 1.3. At least two applications have been lodged since that time, both of which were unsuccessful.

20 For discussion of history of mining on Rennell, see generally Peter Larmour, ‘Sharing the Benefits: Customary Landowners and Natural Resource Projects in Melanesia’ (1989) 36 Pacific Viewpoint 56; David Ruthven, ‘Rennell Bauxite’ in Peter Larmour (ed), Land in Solomon Islands (Institution of Pacific Studies and Ministry of Agriculture and Lands, 1979) 94; Colin Filer, ‘Between a Rock and a Hard Place: Mining, ‘Indigenous People’ and the Development of States’ in Benedict Y Imbun and Paul A McGavin (eds), Mining in Papua New Guinea: Analysis and Policy Implications (University of Papua New Guinea Press, 2001) 7.

21 See, eg, Larmour, above n 20, 58. 22 For discussion of the reasons for this see Larmour, above n 20; John McKinnon, Solomon Islands World Heritage Site

Proposal: Report on a Fact Finding Mission (4 – 22 February 1990) (Victoria University of Wellington, 1990) 17; John Smith, An Island in the Autumn (Librario Publishing Ltd, 2012) 59.

23 Aatai John, ‘No Mining at Lake Tegano’, The Solomon Star (online), 20 February 2017 <http://www.solomonstarnews.com/news/national/12281-no-mining-at-lake-tegano>.

24 WHC Res 34 COM 7B.17, WHC 34th sess, UN Doc WHC-10/34.COM/20 (3 September 2010) 71, 71; WHC Res 36 COM 7B.15, WHC 36th sess, UN Doc WHC-12/36.COM/19 (June – July 2012) 63, 63; WHC Res 37 COM 7B.14, WHC 37th sess, UN Doc WHC-13/37.COM/20 (5 July 2013) 68, 68; WHC Res 38 COM 7A.29, WHC 38th sess, UN Doc WHC-14/38.COM/16 (7 July 2014) 39, 40; WHC Res 39 COM 7A.16, WHC 39th sess, UN Doc WHC-15/39.COM/19 (8 July 2015) 30, 30; WHC Res 40 COM 7A.49, WHC 40th sess, UN Doc WHC-16/40.COM/19 (15 November 2016) 68, 69.

25 WHC Res 40 COM 7A.49, WHC 40th sess, UN Doc WHC-16/40.COM/19 (15 November 2016) 68, 69 paras 8(a), (b). 26 Ibid 69 para 7.

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mining project,27 and no assessment of their cumulative impacts has been conducted. It

appears that few (if any) measures to limit the impact of existing operations have been

implemented.

The scope for the SIG and customary landowners to address these threats under legislation

regulating the logging and mining industries is assessed at 7.3. The potential for the

Protected Areas Act 2010 (the PA Act) to be utilised is discussed at 8.6.

A threat that has not yet been raised by IUCN or the Committee is the clearing of forest

for slash and burn agriculture. A 2016 report found that the largest cleared patches of

forest on the island were caused by this practice, not by logging or mining.28 The

regulation of this activity is also considered at 7.3.

6.2.2 The over-harvesting of certain species

Some species are being over-harvested on Rennell, posing a threat to the WH site’s OUV.

A key species of concern is coconut crab (Birgus latro, locally known as kasusu), which

is caught by the Rennellese people for consumption and sale.29 These crabs are

susceptible to over-exploitation because they mature very slowly.30 A recent report

suggests that at East Rennell they are harvested all year around, including when females

are carrying eggs.31 Coconut crabs are no longer found in West Rennell, 32 and there is a

risk they will be harvested to extinction in East Rennell as well.33 It is unclear whether

the crabs in East Rennell are being harvested only by the East Rennellese people, or by

outsiders as well.

IUCN and the Committee have also expressed concern about the over-exploitation of

marine resources.34 Albert et al found that subsistence fishing is unlikely to significantly

affect marine ecosystems in the short to medium term, because the island has a low

population and accessing the ocean from most villages is relatively difficult.35

27 State of Conservation of the Properties Inscribed on the List of World Heritage in Danger, WHC 40th sess, UN Doc

WHC/16/40.COM/7A.Add.2 (27 June 2016) 11 (East Rennell, Solomon Islands) 12. 28 International Centre on Space Technologies for Natural and Cultural Heritage, above n 16, 20-21. 29 Turton, above n 12, 10; Dingwall, above n 6, 21-22, 32. 30 Dingwall, above n 6, 22. 31 Ibid. 32 Ibid 5. 33 Ibid; Turton, above n 12, 10. 34 Dingwall, above n 6, 19-21; WHC Res 37 COM 7B.14, WHC 37th sess, UN Doc WHC-13/37.COM/20 (5 July 2013) 68, 68. 35 Albert et al, above n 11, 36.

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Commercial and artisanal fishing pressures are also low, but could substantially increase

if access to markets improves.36 The most significant current concern is the over-

harvesting of commercially valuable invertebrate species, including beche de mer (which

is processed from holothurians, commonly known as sea cucumbers) and trochus

(Trochus niloticus).37 Again, it is unclear from the literature whether it is only the

Rennellese who are carrying out this harvesting.

As Solomon Islanders increasingly seek to participate in the cash economy (see 6.3.3) the

harvesting of these species is likely to increase. The Committee has called upon Solomon

Islands to better regulate these activities, including through implementing harvesting

regimes based on traditional practices.38 To date, the government has done little to ensure

that harvesting levels are sustainable. The scope for over-harvesting to be dealt with under

customary law is considered in 6.3. Relevant State legislation is analysed in 7.2 (laws

regulating the taking of species) and 8.6 (the PA Act).

6.2.3 Invasive species

Invasive species, particularly the black ship rat (Rattus rattus) and the giant African snail

(Achatina spp.) are a significant threat to the OUV of East Rennell. Ship rats have recently

been observed within the WH site.39 Some reports say that the animal was probably

introduced into West Rennell from logging vessels,40 but a recent study contends its

introduction predates the commencement of logging.41 Regardless, logging and mining

create habitats favoured by the rats and thus increase their spread.42 They could

potentially affect the site’s OUV by reducing endemic bird and snail populations.43 The

giant snail is now prevalent in Honiara, and could be introduced to Rennell on ships and

aircraft.44 If that occurs, the snails could compete with native fauna of the island.45 Both

ship rats and giant snails could also destroy crops, affecting the food security of the East

Rennellese people.46

36 Ibid. 37 Ibid. Albert et al do however note that the low abundance they encountered could be a result of the sampling method used: at

28. 38 WHC Res 37 COM 7B.14, WHC 37th sess, UN Doc WHC-13/37.COM/20 (5 July 2013) 68, 68. 39 International Centre on Space Technologies for Natural and Cultural Heritage, above n 16, 22. 40 Dingwall, above n 6, 4; Turton, above n 12, 12. 41 International Centre on Space Technologies for Natural and Cultural Heritage, above n 16, 22. 42 Ibid. 43 Dingwall, above n 6, 4; Turton, above n 12, 13. 44 Dingwall, above n 6, 4; Turton, above n 12, 13-14. 45 Dingwall, above n 6, 4; Turton, above n 12, 13. 46 Dingwall, above n 6, 4; Turton, above n 12, 13.

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The extent of the threat posed by invasive species has not yet been thoroughly assessed,

and there are presently no management measures in place.47 The Committee has called

upon Solomon Islands to urgently halt the spread of rats, and to implement biosecurity

controls to stop other invasive species from being introduced.48 Specific control methods

recommended by Turton include baiting and trapping around log loading and storage

sites, and vehicle washdowns.49 To date, no such measures have been implemented. The

scope for the threat posed by invasive species to be dealt with through custom (see 6.3),

legislation regulating the logging and mining industries (see 7.3), the Biosecurity Act

2013 (see 7.4) and the PA Act (see 8.6) will be assessed.

6.2.4 Climate change

Climate change is becoming one of the most significant threats facing WH sites,50 and

East Rennell has been identified as one of the nineteen such places at most risk.51

Predicted impacts include an increase in the level and salinity of Lake Tegano, which

could affect aquatic and lakeside ecology.52 The East Rennellese have already observed

that lakeside areas are increasingly flooding, which is impeding the growth of crops in

those areas.53

The Committee has called upon Solomon Islands to revise the site’s management plan to

include climate change adaptation and mitigation measures,54 but this has not yet been

done. Specific measures recommended by Turton include monitoring tilapia55

populations to assess the impacts of increasing salinity in the lake, and investigating the

feasibility of introducing new species of fish, taro or coconut that are tolerant to changing

climatic conditions.56 IUCN has also suggested identifying new food sources that are

tolerant to changing conditions, as well as replanting in lakeside areas to mitigate the

47 Dingwall, above n 6, 4; International Centre on Space Technologies for Natural and Cultural Heritage, above n 16, 22. 48 WHC Res 40 COM 7A.49, WHC 40th sess, UN Doc WHC-16/40.COM/19 (15 November 2016) 68, 69. 49 Turton, above n 12, 16, 18-19. 50 See, eg, A Markham et al, World Heritage and Tourism in a Changing Climate (UNEP and UNESCO, 2016) 9. 51 Jim Perry, ‘World Heritage Hot Spots: A Global Model Identifies the 16 Natural Heritage Properties on the World Heritage

List Most at Risk From Climate Change’ (2011) 17(5) International Journal of Heritage Studies 426, 426. 52 Dingwall, above n 6, 22-24; Turton, above n 12, 7. 53 Dingwall, above n 6, 22; Turton, above n 12, 10; Scott Alexander Stanley, REDD Feasibility Study for East Rennell World

Heritage Site, Solomon Islands (Secretariat of the Pacific Community and Deutsche Gesellschaft für Internationale Zusammenarbeit, 2013) 12.

54 WHC Res 37 COM 7B.14, WHC 37th sess, UN Doc WHC-13/37.COM/20 (5 July 2013) 68, 68. 55 Tilapia (Tilapia mozambica) were introduced into Lake Tegano in the 1950s as a food source for the local people. 56 Turton, above n 12, 15.

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impact of flooding.57 It appears that to date, no such measures have been implemented,

and as noted in 6.5.1, Solomon Islands does not yet have any climate change legislation.

The analysis above shows that the nature and source of the threats to the OUV of East

Rennell differ. Some arise from activities conducted within the WH site, but many are

due to activities in West Rennell or further afield. Some arise from direct human actions,

while others are caused indirectly. As explored in the reminder of this thesis, the potential

for these threats to be effectively addressed through customary law, management plans

and State law also differs.

6.3 The protection of East Rennell under the customary legal system

This section examines customary law and governance at East Rennell in the context of

WH protection. As demonstrated in 5.3.3, it appears that the WH Committee inscribed

East Rennell on the WH List without a clear understanding of the site’s protection regime.

While several reports and documents have recommended that the site’s customary

protection be researched and documented,58 this has not yet been done in a comprehensive

manner.59 This is a significant gap in knowledge about WH protection in Solomon

Islands. As Ruddle, Hviding and Johannes have stated, questions about the possible

conservation functions served by customary systems ‘can be fully answered only through

intensive, localized, and multidisciplinary field research’.60 In the absence of such field

research, the analysis below is necessarily based on the limited relevant literature. That

literature suggests that the East Rennellese people’s ability to protect the site’s OUV is

constrained by the scope of customary laws (see 6.3.1) and issues with local governance

(see 6.3.2). Their disenchantment with the WH program, and the pressing livelihood

57 Dingwall, above n 6, 6. 58 In 2004, the WH Committee requested that IUCN assess the state of conservation of East Rennell, including documenting and

assessing the effectiveness of the customary protection of the property: WHC Res 28 COM 15B.12, WHC 28th sess, UN Doc WHC-04/28.COM/26 (29 October 2004) 79, 79. The 2007 East Rennell management plan identifies documenting the traditional knowledge and customary practices of the East Rennellese communities as a future management action: Wein, above n 4, 20. Dingwall refers to the need for the ‘systematic cataloguing and documentation of cultural values and traditional resource use and conservation practices’: Dingwall, above n 6, 28.

59 Some reports state that some documentation of customary protection has been undertaken. See, eg, the WH nomination dossier for East Rennell, which states that ‘surveys are underway within the four villages in the area to record the traditional use of natural resources in the forest, the lake and the sea’: Elspeth J Wingham, Nomination of East Rennell, Solomon Islands by the Government of Solomon Islands for Inclusion in the World Heritage List Natural Sites (1997) 38. The Statement of Outstanding Universal Value for East Rennell (adopted by the WH Committee in 2012) says that the task of documenting customary values and traditional management practices has commenced: Adoption of Retrospective Statements of Outstanding Universal Value, WHC 36th sess, UN Doc WHC-12/36.COM/8E (15 June 2012) 55-6; WHC Res 36 COM 8E, WHC 36th sess, UN Doc WHC-12/36.COM/19 (June-July 2012) 225. However, the author’s research did not reveal any literature or reports detailing the outcomes of these surveys.

60 K Ruddle, E Hviding and R E Johannes, ‘Marine Resources Management in the Context of Customary Tenure’ (1992) 7 Marine Resource Economics 249, 267.

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issues they face, also present challenges for the protection of the site under custom (see

6.3.3). Ideally, multidisciplinary fieldwork should be conducted to verify these findings.

6.3.1 Customary laws and World Heritage protection at East Rennell

Land and resource use at East Rennell is regulated through a system of customary land

tenure and other customs and practices.61 The island’s land tenure system differs from

most other parts of Solomon Islands. In the predominantly Melanesian Solomon Islands,

customary land is commonly owned by a group such as a family, line or clan.62 However,

on Rennell (where people are of Polynesian decent) land was traditionally held

individually by male members of the lineage, and passed down from father to first born

son, or if the man had no sons to his brother’s sons.63 Land owners (referred to as matu’a)

had certain powers over their land, including deciding whether to cultivate the land, what

to plant, and whether to grant rights to others over their land.64

Like elsewhere in the Pacific, the customs of the Rennellese changed substantially

following contact with outsiders (see 2.3.4). However, on Rennell this did not occur for

many years after the island was discovered by Europeans in the 1790s.65 Following its

discovery, Rennell was visited by whalers and recruiters seeking workers for plantations

in Queensland, but the establishment of European settlements was impeded by the

island’s isolation, poor soils and the lack of freshwater and safe anchorage sites.66 In

addition, the Rennellese were not considered to be good workers so few were taken to

work on plantations.67 Consequently, at a time when many parts of the Pacific were

undergoing significant change at the hands of colonisers, Rennell remained relatively

unaffected.

61 See, eg, K A J Birket-Smith, An Ethnological Sketch of Rennell Island: A Polynesian Outlier in Melanesia (Munksgaard, 2nd

ed, 1969). 62 Jennifer Corrin and Don Paterson, Introduction to South Pacific Law (Palgrave MacMillan, 3rd ed, 2011) 274-275. 63 Samuel H Elbert and Torben Monberg, From the Two Canoes: Oral Traditions of Rennell and Bellona Islands (Danish

National Museum and University of Hawaii Press, 1965) 10. 64 Ibid 11. 65 For discussion of the discovery of Rennell by Europeans, see Rolf Kuschel, ‘Early Contacts Between Bellona and Rennell

Islands and the Outside World’ (1988) 23(2) Journal of Pacific History 191. 66 T Wolff, ‘The Fauna of Rennell and Bellona, Solomon Islands’ (1969) 255(800) Philosophical Transactions of the Royal

Society of London, Series B, Biological Sciences 321, 321. 67 Kuschel, above n 65, 196; Judith Bennett, Wealth of the Solomons: A History of a Pacific Archipelago, 1800-1978 (University

of Hawaii Press, 1988) 272.

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The island’s isolation ended in 1938 when events transpired leading most Rennellese to

rapidly convert to Christianity.68 Following their conversion, the islanders moved from

their scattered settlements to larger villages, centred on a church, impacting traditional

land tenure systems.69 Traditional culture broke down unusually quickly, as people

abandoned old rituals and social structures changed.70 Writing in 1960, Torben Monberg

(a Danish anthropologist who conducted extensive research on the island) wrote that the

social structure of the Rennellese had almost completely changed from that which existed

20 years earlier.71 Changes to the customs of the Rennellese further accelerated after

World War II, when improved shipping services made it easier for the islanders to travel

to other places and be exposed to new ideas.72 As the population grew, the land areas

owned by individuals decreased in size, and disagreements over the rules concerning land

tenure increased.73 The customs of the East Rennellese were therefore significantly

impacted by contact with outsiders. Notwithstanding this, customary land tenure on

Rennell continues to be more individualised than most other places in Solomon Islands

(discussed further at 7.3.2).

Early anthropological literature evidences some customs relating to the protection of the

island’s natural heritage values. For example, traditionally people allowed garden areas

to lay fallow for four to six years, to ensure soil integrity was maintained.74 Wild ducks,

snakes, geckos and skinks were not traditionally eaten.75 In addition, East Rennellese who

became Seventh Day Adventists did not partake in activities such as shark fishing, eel

netting, flying-fox snaring, gathering shell fish and longicorns, and catching coconut

crabs.76 However, the literature does not reveal the extent to which these customs are

practiced today.

Recent reports and documents regarding the WH site contain little detail concerning

customary laws relevant to heritage protection. The site’s WH nomination dossier states

68 For an account of the conversion of the Rennellese to Christianity see, eg, Tobern Monberg, ‘An Island Changes its Religion’

in Genevieve A Highland et al (eds), Polynesian Cultural History: Essays in Honor of Kenneth P Emory, (Bishop Museum Press, 1967) 565-589; Torben Monberg, ‘Crisis and Mass Conversion on Rennell Island in 1938’ (1962) 71(2) Journal of Polynesian Society 145.

69 Wingham, above n 59, 26. 70 Monberg, ‘Crisis and Mass Conversion’, above n 68, 149. 71 Torben Monberg, ‘Research on Rennell and Bellona: A Preliminary Report’ (1960) 2 Folk 71, 71. 72 Kuschel, above n 65, 199. 73 Torben Monberg, ‘Bellona and Rennell Islanders’ in Melvin Ember, Carol R Ember and Jan Skoggard (eds), (Macmillan,

2002) 46, 48. 74 Elbert and Monberg, above n 63, 16. 75 Birket-Smith, above n 61, 75. 76 Elbert and Monberg, above n 63, 19.

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that the use of flora and fauna is regulated by the customary legal tenure system and

traditional practices,77 but contains little further information about customary protection.

The site’s 2007 management plan (analysed in 6.4) says that the East Rennellese people

employ many traditional practices, including customary fishing methods. 78 However, the

plan does not detail them and indeed notes that it is unknown whether methods like

seasonal closures and other restrictions are implemented.79 A draft management plan for

East Rennell prepared in 201480 contains a series of rules regulating resource use, for

example bans on the hunting of birds on breeding islands, the use of gillnets, and the

taking of animals carrying eggs.81 However, it does not specify whether these rules reflect

custom or whether they are merely proposed management measures.

Gabrys and Heywood, Australian advisors who lived at East Rennell for 18 months

between 2008 and 2009,82 suggest that few customary practices supporting natural

heritage protection are widely implemented at the site today.83 They were engaged to

assist with implementing the 2007 management plan.84 Their consultations with local

communities led them to state that there is ‘little evidence of sustainable utilisation

practices or customary conservation management, especially in relation to wild food

harvesting’.85 Similarly, following a reactive mission in 2012, IUCN stated that there are

no community-based controls on the harvesting of coconut crabs.86 The absence of such

practices and controls may be because the island’s population has always been too small

to foster a strong conservation ethic. As Gabrys and Heywood noted:

Several Rennellese talked about how abundant their resources were in the past, which meant that they did not have to worry about managing certain species for their long-term survival.87

The abovementioned comments suggest that at present customary laws concerning flora

and fauna use cannot by themselves address the threat to East Rennell’s OUV posed by

77 Wingham, above n 175, 45. 78 Wein, above n 4, 16. 79 Ibid. 80 Anna Price, (Draft) Management Plan – East Rennell, Solomon Islands (2014); Live and Learn Environmental Education,

Draft Management Plan – A Summary for East Rennell Communities (2014). 81 Live and Learn Environmental Education, above n 80, 11. 82 The advisors were volunteers through the Australian Volunteers International program: See International Heritage Section,

Department of Sustainability, Environment, Water, Population and Communities, Australian Government, ‘Australian Capacity Building Support for East Rennell World Heritage Area 2007 – 2013’ in Anita Smith (ed), World Heritage in a Sea of Islands: Pacific 2009 Programme, World Heritage Papers 34 (UNESCO, 2012) 66; Kasia Gabrys and Mike Heywood, ‘Community and Governance in the World Heritage Property of East Rennell’ in Anita Smith (ed), World Heritage in a Sea of Islands: Pacific 2009 Programme, World Heritage Papers 34 (UNESCO, 2012) 60.

83 Gabrys and Heywood, above n 82, 62. 84 Ibid 61. 85 Ibid 62. 86 Dingwall, above n 6, 5. 87 Gabrys and Heywood, above n 82, 62.

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the over-harvesting of species. Furthermore, it is unclear to what extent any such laws are

effective against outsiders. Insufficient research has been conducted to know whether

harvesting is being done only by the East Rennellese, or also by people from West Rennell

and others (see 6.2.2). If outsiders are involved, the ability of the East Rennellese chiefs

to enforce their laws against outsiders should be assessed.

The role of custom in addressing the other threats to East Rennell’s OUV also needs to

be considered. Under Solomon Islands’ legislation, unless an exception applies, logging

and mining within the WH site cannot occur without the consent of the East Rennellese

people.88 Therefore, their customary land tenure system and decision-making processes

influence whether the site will be impacted by these activities. The ability and willingness

of the East Rennellese people to protect East Rennell against these activities is explored

at 7.3.

It is unclear based on existing literature whether any customs could be utilised to address

the threats posed by invasive species such as ship rats and African snails. It is however

evident that while the East Rennellese people could contribute by implementing

biosecurity measures on their land, they cannot regulate activities elsewhere (for example,

in West Rennell). Their power to protect the site from these threats is therefore limited,

making the implementation of relevant State laws critical (see 7.3, 7.4 and 8.6).

A range of adaptation and mitigation measures have been suggested to deal with the

impacts of climate change at East Rennell, particularly to ensure that food security is

maintained (see 6.2.4). While the customary legal system cannot prevent these impacts

from occurring, it could potentially help facilitate adaptation and mitigation. For example,

the inundation of lakeside areas may disrupt the implementation of customary laws

regulating access to land and rights to resources. The customary system may need to

evolve to ensure that these laws remain workable, and everyone still has access to viable

land to support their livelihoods.

There is a critical need for empirical research exploring customary protection at East

Rennell. This research should not only explore existing practices, but the scope for the

88 Forest Resources and Timber Utilisation Act (Cap. 40) s 5; Mines and Minerals Act (Cap. 42) ss 21, 36(a). These provisions

are analysed at 7.3.

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customary system to evolve to meet new challenges such as invasive species and climate

change. This research could be undertaken in the context of the preparation of a new

management plan for the site (discussed in 6.4). It is however clear that many threats

cannot be dealt with through the customary system alone.

6.3.2 Customary governance and World Heritage protection at East Rennell

The effectiveness of customary protection depends both on the scope of customary laws

and the extent to which they are adhered to. Customary laws derive their force from

uniform practice and the peoples’ subjective belief that they must be complied with.89

Therefore, issues such as the extent of social cohesion within the community,90 and the

strength of local governance bodies91 will influence compliance. In Solomon Islands,

customary governance bodies do not have a formal position under State legislation92 so

their strength is determined by their legitimacy within the local community.

In Rennell, authority within a line traditionally lay with all matu’a (landowners).93

However, one matu’a could assume a higher position because of his seniority within his

generation, the seniority of his father’s generation, or his possession of special skills.94

Such a person was called hakahua (now commonly referred to as a chief).95 In the pre-

contact period, the matu’a of the lineage were not compelled to obey the hakahua.96

However, as a hakahua was often a more senior member of the lineage and had more land

at his disposal than other matu’a, he generally had a higher status.97 In the pre-contact

period there was also no supreme chief nor any collective body of chiefs, with the chiefs

considering themselves to be autonomous.98 Today however, customary authority is

89 Michael A Ntumy, ‘The Dream of a Melanesian Jurisprudence: The Purpose and Limits of Law Reform’ in Jonathan Aleck

and Jackson Rannells (eds), Custom at the Crossroads (University of Papua New Guinea, 1995) cited in Jennifer Corrin Care and Jean G Zorn, ‘Legislating for the Application of Customary Law in Solomon Islands’ (2005) 34 Common Law World Review 144, 149.

90 See, eg, Matthew Allen et al, Justice Delivered Locally: Systems, Challenges and Innovations in Solomon Islands (World Bank, 2013) 69.

91 See, eg, Joeli Veitayaki et al, ‘On Cultural Factors and Marine Managed Areas in Fiji’ in Jolie Liston, Geoffrey Clark and Dwight Alexander (eds), Pacific Island Heritage: Archaeology, Identity and Community (ANU E Press, 2011) 37, 38; Shankar Aswani, ‘Customary Sea Tenure in Oceania as a Case of Rights-Based Fishery Management: Does it Work?’ (2005) 15 Reviews in Fish Biology and Fisheries 285, 289; Pepe Clarke and Stacy D Jupiter, ‘Law, Custom and Community-Based Natural Resource Management in Kubulau District (Fiji)’ (2010) 37(1) Environmental Conservation 98, 104.

92 The only role for chiefs recognised under State legislation is in the resolution of disputes over rights to customary land: Local Courts Act (Cap 19) s 12(1).

93 Elbert and Monberg, above n 63, 11. 94 Ibid. 95 Ibid; Monberg, above n 71, 77. 96 Elbert and Monberg, above n 63, 12. 97 Ibid. 98 Monberg, above n 71, 77; Allen et al, above n 90, 38; Elbert and Monberg, above n 63, 14.

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exercised by the chiefs and a Council of Chiefs, headed by a paramount chief.99

Literature suggests that customary governance at East Rennell is currently weak. In 2008

/ 2009, Gabrys and Heywood observed that the Council of Chiefs was losing its authority,

in part because of ‘increasing pressures to engage with the cash economy, internal

disputes over land ownership and increasing church authority’.100 Consequently, many

local people viewed it as ‘ineffective or dysfunctional.’101 More recent field work by

Allen et al found that there is ‘an almost complete collapse of community governance

mechanisms’ in Rennell,102 and many community members do not trust the chiefs.103

These governance issues may be reducing adherence with customary laws, and thus

limiting the protection of the site’s WH values under the customary system.

In an attempt to strengthen local governance, several community organisations have been

established at East Rennell,104 the most recent being the Lake Tegano World Heritage

Site Association (LTWHSA) which was registered under the Charitable Trusts Act (Cap.

55) in 1999.105 It aims to safeguard the OUV of East Rennell and ensure local people

benefit from the WH program.106

The power to make decisions on behalf of the LTWHSA is vested in a committee of ten

members, comprising two representatives from each of the four villages, and two

representatives of the Rennell Bellona provincial government.107 Chiefs have no formal

role in the association (unless they are elected to the committee) but can attend committee

meetings in a non-voting capacity.108 Church leaders also have no formal role, despite

their status within the communities. While the Constitution makes local decision-making

more democratic in a Western sense, the corollary is that its structure is at odds with

customary governance.109

99 Wingham, above n 175, 5. 100 Gabrys and Heywood, above n 82, 61. 101 Ibid. 102 Allen et al, above n 90, 24. 103 Allen et al, above n 90, 38. 104 The Tegano Management and Conservation Committee was established with the assistance of the New Zealand government:

Elspeth J Wingham and Ben Devi, ‘The Involvement of Local People in the Management of a Proposed World Heritage Site at East Rennell, Solomon Islands’ in Hans D Thulstrup (ed), World Natural Heritage and the Local Community: Case Studies from Asia Pacific, Australia and New Zealand (UNESCO, 1999) 79, 80. In 2001, the East Rennell Environment and Conservation Trust Board was established: Tabbasum and Dingwall, above n 5, 9. It was renamed to the East Rennell World Heritage Trust Board; Wein, above n 4, 10. The Board is no longer functional.

105 S 3. 106 Lake Tegano World Heritage Site Association Constitution and Rules (2009) cl 2.1. 107 Ibid cl 5.1(a). 108 Ibid cl 5.1(g). 109 Anita Smith, ‘East Rennell World Heritage Site: Misunderstandings, Inconsistencies and Opportunities in the Implementation

of the World Heritage Convention in the Pacific Islands’ (2011) 17(6) International Journal of Heritage Studies 592, 601.

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The decisions of the LTWHSA have no basis under custom or State law, so in practice

the association’s authority is entirely dependent on the degree to which the local people

support it. When the author was working in East Rennell in 2013, the LTWHSA was

operational, and it helped facilitate the implementation of the Live and Learn

Environmental Education (LLEE) protected area project (described at 1.4). However, the

author observed that it had not been engaged with many other substantial activities for

some time.110 In addition, the relationship between the committee and some chiefs was

tense, which appeared to be impeding the operation of the association. Consequently,

several locals commented to the author that chiefs and church leaders should be given a

role on the committee. It appears that other organisations established at East Rennell have

suffered from similar issues. For example, Zikuli and Clothier noted that the

establishment of the East Rennell World Heritage Trust Board111 ‘brought new factions

of power and authority into the community that many were not happy with’.112 Other

issues observed by the author that appeared to be plaguing the LTWHSA were

ambiguities and gaps in its Constitution,113 a lack of funds to convene meetings,114 and

allegations of financial mismanagement.115 Issues with the operation of local associations

are not unique to East Rennell nor to conservation efforts. For example, Naitoro has

written about problems plaguing the Gold Ridge Landowners’ Association, which was

established to manage the royalties from the Gold Ridge mining project on Guadalcanal.

He notes:

Because most of the members of the association were chosen on the basis of educational level, cultural importance has been undermined. Elders have lost their leadership role, because they are unable to deal with external government and foreign company officials. The association has not been a self-functioning organisation and lacks the human and financial resources necessary to represent the people adequately.116

110 For example, under its Constitution, the LTWHSA is responsible for implementing the site’s management plan, running

education and awareness programs in the communities to improve understanding of WH, and researching and promoting traditional resource management methods and cultural values: Lake Tegano World Heritage Site Association Constitution and Rules cls 2.2(a), (e) and (f). In 2013, the author saw no evidence that the LTWHSA was involved with these activities.

111 This local organisation was established following the listing of East Rennell, but has since been disbanded. 112 Jacob Zikuli and Hazel Clothier, Community Attitudes and Perceptions Towards the East Rennell World Heritage Programme

(Live and Learn Environmental Education, 2008) 13. 113 For example, the LTWHSA’s Constitution tries to ensure equality between the four East Rennell villages by guaranteeing

equal representation on the committee for each village: Lake Tegano World Heritage Site Association Constitution and Rules cl 5.1(a). The chairperson of the committee is elected by the (eight) committee members: cl 5.1(d). The Constitution does not prescribe how the chairperson is to be elected if the vote of committee members results in a stalemate. This occurred in 2013 at a committee meeting attended by the author. This issue is yet to be resolved.

114 The committee is currently dependent on receiving funds from the SIG or donors to convene meetings. The government has now allocated a fixed annual amount for the LTWHSA (Pacific World Heritage Action Plan 2016 – 2020 (2016) 16) which may improve the situation.

115 At meetings of the members and committee of the LTWHSA in 2013, the author observed several accusations of mismanagement regarding funds provided to the committee by the SIG.

116 John Naitoro, ‘Mineral Resource Policy in Solomon Islands: The ‘Six Feet’ Problem’ (2000) 15(1) Pacific Economic Bulletin 132, 136.

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As explained in 2.3.4, customary legal systems have undergone profound changes since

the pre-contact period, and they continue to evolve. The establishment of a new local

governance association could, in some circumstances, be an appropriate part of this

process, assisting local people to meet the contemporary challenges they face. However,

any such body that is established must be coherent with customary governance

structures.117 Importantly, the respective mandates of the association and the customary

structure must be clear.118 A failure to address these issues could lead to the overall

weakening of local governance and conflict.

At present, a lack of strong local governance at East Rennell presents a challenge for WH

protection. Strengthening customary protection will require exploring if and how the

legitimacy of the chiefs within the communities can be improved, and clarifying the

relationship between customary structures and any new local bodies that are established.

It is imperative that all governance bodies have clear mandates so they can operate

cooperatively together. This issue is discussed further in the context of the PA Act at 8.7.

6.3.3 The protection of East Rennell under the customary legal system in context

Many East Rennellese people are disenchanted with WH, in part because the listing of

their land brought them few tangible benefits.119 A key driver behind their initial support

for listing was a belief that it would generate tourism and economic development (see

5.2.2). However, none of the small-scale community projects funded by the New Zealand

government in conjunction with the nomination were successful in the long-term.120 In

addition, the site only appeals to a small segment of the tourism market (see Figure 14),

so only ‘a handful’ of tourists go there each year.121 WH listing has therefore not resulted

in the financial windfall the East Rennellese people expected. Their disappointment is

fuelled by misunderstanding of the WH system,122 and the fact that their cultural heritage

117 Anita Smith and Cate Turk, ‘Customary Systems of Management and World Heritage in the Pacific Islands’ in Sue O’Connor,

Denis Byrne and Sally Brockwell (eds), Transcending the Culture-Nature Divide in Cultural Heritage: Views from the Asia-Pacific Region (ANU E Press, 2012) 22, 29.

118 Albert Mumma, ‘Legal Aspects of Cultural Landscape Protection in Africa’ in Cultural Landscapes: The Challenges of Conservation, World Heritage Papers 7 (UNESCO, 2003) 156, 156.

119 Smith, above n 109, 592, 597; Tabbasum and Dingwall, above n 5, 13; Stanley, above n 53, 12; Gabrys and Heywood, above n 84, 62; Zikuli and Clothier, above n 112, 12; Maria Ana Borges et al, Sustainable Tourism and Natural World Heritage (IUCN, 2011) 10.

120 Dingwall, above n 6, 8. 121 Smith, above n 109, 598. See also Stanley, above n 53. Stanley states that less than 10 tourists visited the site in 2012; at 12. 122 Smith, above n 109, 601; Zikuli and Clothier, above n 112, 12.

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was not recognised in the site’s listing (see 5.3.1). Over time, continued community

disenchantment is likely to diminish local support for WH protection.

Figure 14: Tourist accommodation, East Rennell World Heritage site (Stephanie Price, 2013)

As for many rural Solomon Islanders, livelihood issues are the primary concern for the

people of East Rennell.123 Most live predominantly subsistence lifestyles, relying on

tilapia fish from the lake, food from their gardens, coconut crabs, marine resources, and

occasionally birds and bats.124 Growing crops is challenging because the island is

extremely rocky and has limited fertile soil and few water courses. In addition, coconut

crab and tilapia numbers are decreasing due to over-harvesting, and climate change and

invasive species are threatening food security. In response, the East Rennellese are

increasingly looking to participate in the cash economy, to fund the purchase of imported

123 Gabrys and Heywood, above n 84, 62; Zikuli and Clothier, above n 112, 13. See also Smith, above n 109, who notes that

livelihood issues dominated the meetings with community members that she was involved with to discuss the WH program: at 598. Similarly, livelihood issues dominated many of the meetings the author attended in East Rennell (in her capacity as legal advisor for Live and Learn Environmental Education) concerning the protection of the WH site. The author’s work in Rennell is explained in 1.4.


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food and to meet other expenses such as education and health care.

Opportunities to earn cash income on Rennell are very limited because of its isolation and

geography. The island is 180km south of Guadalcanal, and is difficult to access because

it has no port and in most places limestone cliffs at the coast drop straight down to the sea

(see Figure 15). This impedes the development of any industry requiring the import or

export of products.125 While West Rennell hosts an airstrip connecting the island with

Honiara, flights only operate a few times a week and can be irregular. Furthermore, the

90km trip from the airstrip to East Rennell can take many hours due to the poor condition

of the road and vehicles (see Figures 16 and 17). West Rennell has some phone and

internet coverage, but there is none within the WH site. Due to these constraints, there is

essentially no private sector on Rennell, and most local people rely on cash sent by

relatives in Honiara and small-scale commercial activities to support their livelihoods.126

Figure 15: Aerial view of the south-eastern end of Rennell, showing limestone cliffs dropping to the sea along much of the coast (Stephanie Price, 2013)

125 See, eg, ibid 10, 27. 126 Smith, above n 109, 598; John Foimua, ‘Renbel (Rennell-Bellona) Province, Provincial Profile’ in David Lawrence and

Matthew Allen (eds), Hem Nao, Solomon Islands, Tis Taem – Community Sector Program – Volume 1, Provincial Profiles (2006) 131, 144-145. See also Solomon Islands Government, Volume I Report on 2009 Population and Housing Census: Basic Tables and Census Description, Statistical Bulletin 6/2012 (Solomon Islands Government, 2012).

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Figure 16: The road linking the capital of Rennell (Tigoa) and the East Rennell World Heritage site (Stephanie Price, 2013)

Figure 17: One of many flat tyres experienced on the journey from the airstrip in the capital of Rennell (Tigoa) to the East Rennell World Heritage site (Stephanie Price, 2012)

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Customary management and protection of WH must be considered in the context of the

pressing livelihood issues that the East Rennellese people face and the limited

development options available to them. These issues are likely to influence their

willingness to take steps to protect the site’s WH values (such as reducing their harvesting

of natural resources, and agreeing to the establishment of a protected area over their land,

issues which are discussed in the next two chapters). As explored further in 6.5.2, they

also influence the role that the SIG perceives it has in the site’s conservation.

6.4 The protection of East Rennell under a management plan

If a site is well-managed through customary systems, a management plan may not be

required to effectively protect the site.127 However, it appears that customary protection

is unable to deal with all threats to the OUV of East Rennell (see 6.3). Therefore,

additional management measures are required, and a management plan can potentially

provide an effective framework for the implementation of such measures.

Since East Rennell was listed, the Committee has repeatedly called upon SIG to develop

(and later improve) a management plan.128 A plan for the site was prepared in 2007 by a

consultant with funding from the WH Fund.129 In 2014, a draft revised management plan

was prepared by another consultant as part of the LLEE protected area project (described

at 1.4).130 That project ended before the plan was finalised, and thus it remains in draft. It

has not yet been approved by either the East Rennellese people or the SIG. In 2015, the

SIG requested assistance from IUCN for the preparation of a new plan,131 but it is unclear

whether that project will be funded. Thus, the 2007 management plan is the current plan

for the site.

The 2007 plan sets out a vision for the site, management objectives, and a series of actions

to achieve those aims. Among other things, it supports banning commercial logging and

mining, limiting coconut crab harvesting, and regulating the taking of marine species

127 Smith and Turk, above n 117, 30. 128 WHC Res 29 COM 7B.10, WHC 29th sess, UN Doc WHC-05/29.COM/22 (9 September 2005) 45, 45; WHC Res 31 COM

7B.21, WHC 31st sess, UN Doc WHC-07/31.COM/24 (31 July 2007) 58, 58; WHC Res 38 COM 7A.29, WHC 38th sess, UN Doc WHC-14/38.COM/16 (7 July 2014) 39, 40; WHC Res 39 COM 7A.16, WHC 39th sess, UN Doc WHC-15/39.COM/19 (8 July 2015) 30, 31; WHC Res 40 COM 7A.49, WHC 40th sess, UN Doc WHC-16/40.COM/19 (15 November 2016) 68, 69.

129 Wein, above n 4, 6. 130 Price, above n 80. 131 State of Conservation of the Properties Inscribed on the List of World Heritage in Danger, WHC 39th sess, UN Doc WHC-

15/39.COM/7A.Add (29 May 2015) 19 (East Rennell, Solomon Islands) 20.

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through the creation of a marine protected area,132 all of which could assist to protect the

site’s OUV. However, as the Committee has commented, the management measures lack

detail, and the plan lacks a timeline and budget.133 It also does not include any measures

to address the impacts of invasive species or climate change. In any event, the plan has

been ineffective as it has barely been implemented.134 As explained below, three key

reasons for this are likely to be (I) the East Rennellese people lack interest in it, (II) the

plan lacks any basis under custom or State law, and (III) a lack of resources and capacity

for implementation.

(I) The East Rennellese people lack interest in the management plan

The 2007 plan was based on a series of community meetings and workshops run

in the East Rennell communities, and was informed by earlier awareness programs

conducted in conjunction with the preparation of the WH nomination.135 Through

these consultations, the East Rennellese people developed the management

actions in response to what they perceived to be the problems facing the site.136

However, while the local people had significant input into the plan’s development,

they currently have little interest in or understanding of it.137

This may be because the plan is not based on their customs, but rather identifies

the documentation of land tenure, traditional knowledge and cultural practices as

a future management action.138 In this respect, the plan can be contrasted with the

management plan for the Chief Roi Mata’s Domain WH site in Vanuatu. That

plan describes itself as ‘an unprecedented attempt’ to document the site’s nafsan

natoon (the local peoples’ expression for customary protection).139 This difference

in part reflects the fact that East Rennell is a natural WH site, whereas Chief Roi

Mata’s Domain was listed as a ‘cultural landscape in which people’s lives are still

strongly defined by kastom’.140

132 Wein, above n 4, 19-20. 133 WHC Res 31 COM 7B.21, WHC 31st sess, UN Doc WHC-07/31.COM/24 (31 July 2007) 58, 58. 134 Tabbasum and Dingwall, above n 5, 9, 19. This finding is consistent with the author’s observations from working in East

Rennell. 135 Wein, above n 4, 7. 136 Wein, above n 4, 19. 137 Smith and Turk, above n 117, 28. 138 Wein, above n 4, 20. 139 Meredith Wilson, Plan of Management for Chief Roi Mata’s Domain (CRMD) (2006) 22. 140 Ibid.

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The East Rennellese people may also be somewhat apathetic towards the 2007

plan because it does not align with their priorities. Smith has found that the

heritage they most want protected is linked to their cultural identity, as expressed

through their land tenure system, environmental knowledge, traditional resource

use, crafts, songs and dance.141 The management plan’s focus on the natural

environment therefore reflects the site’s WH values, but not the aspirations of at

least some of the local people. The fact that the plan was never translated into East

Rennellese is also likely to have contributed to their lack of interest.

(II) The management plan has no basis under customary or State law

As noted above, the 2007 plan does not document any customary laws or

practices. In addition, primary responsibility for implementing the plan is vested

in a non-customary body. A local community organisation called the East Rennell

World Heritage Trust Board (ERWHTB)142 was originally charged with

implementation, but that Board is no longer operational. Responsibility now rests

with the Lake Tegano World Heritage Site Association (LTWHSA).143 Decisions

of the LTWHSA have no force under customary law and, as noted in 6.3.2, there

are issues impeding the association’s effectiveness.

The 2007 management plan also has no force under State law. The plan was

drafted in anticipation that some of the management actions would be

strengthened through a provincial ordinance,144 however no such law has been

enacted. The plan could gain some legal effect under the PA Act (see 8.6), but that

has not yet occurred. As such, it has no legal basis and implementation is entirely

voluntary. In the absence of strong community interest in the plan, this makes

implementation unlikely.

141 Smith, above n 109, 605. 142 Wein, above n 4, 10, 21. 143 Lake Tegano World Heritage Site Association Constitution and Rules cl 2.2(a). 144 Wein, above n 4, 17.

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(III) The community associations charged with implementing the plan lack the

resources and capacity to do so

The 2007 management plan does not make any SIG entity responsible for

implementation. This is in some respects understandable. Commenting on the Kuk

Early Agricultural Site in Papua New Guinea (PNG), Denham, Muke and

Genorupa contend that any management plan for that site needs to be resistant to

neglect by the national and provincial governments.145 They note that in PNG it

is both ‘unrealistic and inappropriate to burden national or provincial governments

with substantial and continuing financial commitments.’146 Similarly in Solomon

Islands, a WH management plan that requires a large long-term commitment from

the government is unlikely to be successful. However, responsibility for the

implementation of such a plan cannot simply be devolved to the local people if

they have insufficient capacity and resources to undertake the management

measures. This is especially the case when the management measures are assisting

the State to comply with its international legal obligations. To date, while the

ERWHTB and the LTWHSA have received some assistance,147 the funds and

expertise available at the local level to dedicate to the implementation of the plan

remain very limited.

The 2007 management plan has not been effective, and should be revised or ideally

replaced. Implementing any management plan at East Rennell will be challenging, and

there is no guarantee that any future document will enjoy greater success. However, some

lessons can be learned from the experiences with the 2007 plan.

To the extent possible, any future plan should be more strongly rooted in custom, and

better aligned with the priorities of the East Rennellese. Smith has found that they would

support the documentation of their cultural values, to provide a framework within which

the site’s natural heritage could be managed.148 Such a project could inform the

development of a document that embedded the management actions required for the

protection of the site’s OUV within a broader plan that recognised the customs, values

145 John Denham, Tim Muke and Vagi Genorupa, ‘Nominating and Managing a World Heritage Site in the Highlands of Papua

New Guinea’ (2007) 39(3) World Archaeology 324, 331. 146 Ibid 333. 147 For example, the assistance provided by Gabrys and Heywood: see Gabrys and Heywood, above n 82. 148 Smith, above n 109, 605.

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and aspirations of the East Rennellese people. This would make the plan more consistent

with holistic approaches to environmental management, which are now supported under

international agreements such as the Convention on Biological Diversity.149 Importantly,

such a plan may also enjoy greater local support. The potential for the management plan

to gain legal effect under the PA Act should also be considered (see 8.6). If the East

Rennellese people wish to go down that path, the new management plan would have to

be drafted to meet the requirements of that Act. Importantly, the measures must be

designed in light of the resource and capacity constraints of the bodies charged with

implementation. It is unrealistic to expect that local people will dedicate significant time

and resources to WH protection activities unless the proposed management measures

closely align with their priorities and/or they are supported to do so.

6.5 The protection of East Rennell under State legislation

6.5.1 State laws and World Heritage protection at East Rennell

The Committee has repeatedly called upon Solomon Islands to develop and implement

legislation to safeguard East Rennell’s WH values.150 Although the site’s nomination

dossier stated that the SIG would enact a World Heritage Protection Act (see 5.3.3(C)),

that never occurred. In addition, the Rennell-Bellona provincial government has no

ordinance for the conservation of the site, and East Rennell has not been declared a

‘protected area’ under the PA Act. Consequently, the site currently does not have broad

protection under State legislation.

Notwithstanding this, laws exist that could be utilised to address some of the threats to

East Rennell. Given the nature and source of these threats (see 6.2) the most relevant laws

are:

laws that regulate the taking of certain species, including Regulations made under

the Fisheries Management Act 2015 and the Forest Resources and Timber

Utilisation Act (Cap. 40) (see 7.2);

149 Convention on Biological Diversity, opened for signature 5 June 1992, 1760 UNTS 79 (entered into force 29 December 1993). 150 WHC Res 29 COM 7B.10, WHC 29th sess, UN Doc WHC-05/29.COM/22 (9 September 2005) 45, 45; WHC Res 31 COM

7B.21, WHC 31st sess, UN Doc WHC-07/31.COM/24 (31 July 2007) 58, 58; WHC Res 33 COM 7B.19, WHC 33rd sess, UN Doc WHC-09/33.COM/20 (20 July 2009) 68, 68; WHC Res 34 COM 7B.17, WHC 34th sess, UN Doc WHC-10/34.COM/20 (3 September 2010) 71, 71; WHC Res 37 COM 7B.14, WHC 37th sess, UN Doc WHC-13/37.COM/20 (5 July 2013) 68, 68; WHC Res 38 COM 7A.29, WHC 38th sess, UN Doc WHC-14/38.COM/16 (7 July 2014) 39, 40.

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laws that regulate extractive industries, including the Forest Resources and

Timber Utilisation Act (Cap. 40), the Mines and Minerals Act (Cap. 42), and the

Environment Act 1998 (see 7.3);

the Biosecurity Act 2013 (see 7.4); and

laws under which the site may be declared as a protected area, including the PA

Act (see chapter 8).

This legislation is analysed in chapters 7 and 8 to assess its potential to contribute to WH

protection and the key issues influencing its implementation in practice.

The laws referred to above could also contribute to the protection of the two sites on

Solomon Islands’ Tentative List, both of which been affected by logging, and are

promoted as being eligible for WH listing in part because of their rich biodiversity and

the prevalence of endemic species.151 Other laws that may be relevant to future WH sites

include those concerning urban development,152 commercial fisheries,153 the export of

protected wildlife,154 pollution control,155 and World War II relics and wrecks.156 An

analysis of that legislation does not fall within the scope of this research, but would be a

valuable if further sites are listed.

The significant gaps in Solomon Islands’ legislative framework for WH protection must

be acknowledged, including the limited scope of its threatened species legislation. As will

be explained in chapter 7, the Fisheries Management Act 2015 and the Forest Resources

and Timber Utilisation Act (Cap. 40) allow relevant government decision-makers to

declare that certain marine and tree species are protected. However, like many Pacific

Island States, Solomon Islands has no broad threatened species legislation.157 The Wildlife

Protection and Management Act 1998 has been enacted, but that law regulates the import

and export of certain plants and animals, as opposed to all activities that could harm

important species.158 Thus, some species whose conservation may be necessary for the

151 UNESCO, Marovo – Tetepare Complex <http://whc.unesco.org/en/tentativelists/5414/>; UNESCO, Tropical Rainforest

Heritage of Solomon Islands <http://whc.unesco.org/en/tentativelists/5416/>. 152 For example, the Town and Country Planning Act (Cap. 154). 153 For example, the Fisheries Management Act 2015. 154 The Wildlife Protection and Management Act 1998. 155 For example, the Environment Act 1998. 156 The Protection of Wrecks and War Relics Act (Cap. 150). For analysis of this Act, see Craig Forrest and Jennifer Corrin,

‘Legal Pluralism in the Pacific: Solomon Islands’ World War II Heritage’ (2013) 20 International Journal of Cultural Property 1.

157 Cf Endangered Species Act 1975 (Marshall Islands). 158 For an explanation of this Act, see Stephanie Price et al, Environmental Law in Solomon Islands (Public Solicitor’s Office,

Solomon Islands Government, 2015) 293-298. The Act may be amended soon, as the Wildlife Protection and Management (Amendment) Bill 2016 was debated by the Parliamentary Bills and Legislation Committee in January 2017: Solomon Islands Government, Parliament Successfully Conclude Hearings (27 January 2017) <www.parliament.gov.sb>. The purpose of the

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preservation of a site’s OUV (such as birds) are inadequately protected under Solomon

Islands’ law.159

Solomon Islands also does not have any specific climate change legislation, and indeed

climate change issues are not addressed in any legislative provisions.160 The country’s

national climate change policy states that a law will be enacted to (among other things)

give a legal mandate to the agency responsible for climate change161 and to facilitate the

planning, implementation and evaluation of adaptation and mitigation actions.162

However, this has not yet happened. Furthermore, there is no express requirement under

any legislation for climate change to be considered in administrative decision-making,

such as the determination of development approvals. Much work remains to be done to

help the East Rennellese cope with and adapt to the impacts of climate change (see 6.2.4).

Existing legislation concerning issues such as protected areas (particularly the PA Act)

and environmental impact assessment (the Environment Act) could be utilised to help

communities with this task. However, there is a critical need for legislative reform to

strengthen the legal framework for climate change mitigation and adaptation in Solomon

Islands.163

Another substantial gap is the lack of any national cultural heritage law.164 Solomon

Islands’ 2012 State party report submitted to the WH Committee stated that such a law

would be enacted,165 however this has not yet happened. Any such legislation should be

tailored to the nature of Solomon Islands’ cultural heritage. As explained in 2.2.1(B), in

Solomon Islands, cultural heritage is often expressed through landscapes and seascapes

evidencing the connection between people and their environment, and through associated

proposed amendment is to align the Wildlife Protection and Management Act with Solomon Islands’ obligations under the Convention on International Trade in Endangered Species (opened for signature 3 March 1973, 993 UNTS 243 (entered into force 1 July 1975)).

159 The Wild Birds Protection Act (Cap. 45) previously provided some protection to certain birds, however that law was repealed when the Wildlife Protection and Management Act 1998 came into force in 2003.

160 Ben Boer and Pepe Clarke, Legal Frameworks for Ecosystem-Based Adaptation to Climate Change in the Pacific Islands (SPREP, 2012) 30.

161 The Climate Change Division of the Ministry of Environment, Climate Change, Disaster Management, and Meteorology. 162 Solomon Islands National Climate Change Policy: 2012 – 2017 (2012) cl 8.1.1(1)(b). 163 For further discussion, see Boer and Clarke, above n 160. 164 Although Solomon Islands lacks any comprehensive cultural heritage legislation, some legislation does contain provisions

relating to the protection of cultural heritage, including the Protection of Wrecks and War Relics Act (Cap. 150), the Town and Country Planning Act (Cap. 154), the Land and Titles Act (Cap. 133) and some provincial ordinances such as the Choiseul Province Preservation of Culture Ordinance 1999 and the Makira Preservation of Culture and Wildlife Ordinance 1985. For a summary of this legislation see Ben Boer, Solomon Islands: Review of Environmental Law (SPREP, 1993) 56-65. Boer notes that this legislation is rarely enforced (at 57).

165 Solomon Islands Government, State Party Report on the State of Conservation of the East Rennell World Heritage Area (Solomon Islands) (SIG, 2012) 2.

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traditions, knowledge, stories and songs.166 Cultural heritage legislation in many

jurisdictions provides for the establishment of registers of built heritage sites, and imposes

restrictions on the ownership, use and development of such places. Such a law would be

of little use for the protection of many culturally significant places in Solomon Islands.

Furthermore, the PA Act already establishes a protective regime for landscapes and

seascapes of natural and cultural significance (see chapter 8). Future research should

therefore consider the types of cultural sites in Solomon Islands that require protection,

the threats to those sites, and the scope for them to be protected through the PA Act and

other existing legislation. It may be that amending existing laws is a more efficient and

effective approach than enacting new legislation for the protection of cultural heritage

sites.

6.5.2 The protection of East Rennell by the State in context

Given SIG’s limited involvement in the management of East Rennell and its failure to

ensure that East Rennell is strongly protected under State law, it is arguably not

complying with its obligations under the Convention.167 Some possible reasons for its

non-compliance have been referred to previously in this thesis. Compared with many

Western nations, Solomon Islands became a party to the Convention relatively recently,

giving it less time to implement the treaty domestically (see 1.2.3). In addition, its ability

and willingness to comply is constrained by competing development priorities,

governance issues, the government’s lack of relevance to people in rural areas, and the

difficulties associated with enforcing legislation on remote islands (see 2.4.1). The

government’s lack of resources to devote to the implementation of the Convention was

noted as a significant challenge by several people interviewed as part of the consultation

process undertaken for this research.168

The consultation process identified some additional issues. Interviewees were asked to

comment on what they perceived to be the government’s role in the protection of a WH

site under customary ownership. A common response was that the government should

166 Anita, Smith, ‘The World Heritage Pacific 2009 Programme’ in Anita Smith (ed), World Heritage in a Sea of Islands: Pacific

2009 Programme, World Heritage Papers 34 (UNESCO, 2012) 2, 4. 167 The obligations of State parties under the World Heritage Convention are explored in chapter 4. 168 Interview with an officer in the Ministry of Culture (Honiara, 26 July 2013); Interview with an officer in the Ministry of

Education, who was formerly the focal point for World Heritage within the Solomon Islands National Commission for UNESCO (Honiara, 28 July 2013); Interview with Joe Horokou, Director of the Environment and Conservation Division of the Ministry of Environment (Honiara, 15 August 2013); Interview with Malchoir Mataki, Permanent Secretary of the Ministry of Environment (Honiara, 1 October 2013).

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support the local communities to sustainably manage their natural resources rather than

dictate how the land should be used. For example, an employee within the Ministry of

Culture stated:

We [the government] cannot throw up a management plan from here or pick it from anywhere and go to East Rennell and say this is how we do it. What they [the East Rennellese people] say about their land is just as strong as us.169

Joe Horokou (Director of the Environment and Conservation Division of the Ministry of

Environment) commented that East Rennell’s customary tenure affects what the

government can do to protect the site, and the East Rennellese people have the right to

make the final decision about their resources.170 He added that the Ministry of

Environment has ‘no direct authority over the site’.171 Similarly, a conservation officer

within the Ministry of Environment stated that it was difficult for the State to require good

resource management at the site, because the government does not own the natural

resources.172 The interviewee added that Solomon Islands’ governance systems are not a

conducive environment for implementation of the Convention.173

View such as these echo comments made by representatives of the SIG around the time

that East Rennell was inscribed on the WH List. For example, a letter from SIG to the

WH Centre that was attached to the nomination dossier stated:

It should be emphasized that the proposed East Rennell World Heritage site is in customary land ownership and the long term wise management of the site will depend on the commitment made by the local people.174

That sentiment was repeated in a letter from the Solomon Islands’ National Commissioner

for Culture to the WH Centre in 2004, in which the Commissioner indicated that:

[it is] not appropriate for the national government to prepare national legislation to regulate a property governed by customary ownership where land is protected by traditional laws recognized by the National Constitution.175

The interviewees also emphasised that the East Rennellese people rely on their natural

resources for their livelihoods, so the State would have to compensate them in some way

169 Interview with an officer in the Ministry of Culture (Honiara, 26 July 2013). 170 Interview with Joe Horokou, Director of the Environment and Conservation Division of the Ministry of Environment (Honiara,

15 August 2013). 171 Ibid. 172 Interview with a conservation officer in the Ministry of Environment (Honiara, 2 August 2013). 173 Ibid. 174 Letter from Moses K Mose, Permanent Secretary of Solomon Islands Ministry of Commerce, Employment and Tourism, to

Bernd von Droste, Director of the UNESCO World Heritage Centre (1 September 1998) attached as supplementary information to Elspeth J Wingham, Nomination of East Rennell, Solomon Islands by the Government of Solomon Islands for Inclusion in the World Heritage List Natural Sites (1997) 2.

175 State of Conservation of Properties Inscribed on the World Heritage List, WHC 28th sess, UN Doc WHC-04/28.COM/15B (15 June 2004) 15 (East Rennell, Solomon Islands) 15.

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if it were to restrict resource use or development on the island. For example, Malchoir

Mataki (Permanent Secretary of the Ministry of Environment) commented on the lack of

employment opportunities on Rennell, noting that people in East Rennell ‘cannot go and

work in a factory’.176 He said that if the government constrained the people from using

their resources, it would need to provide them with opportunities elsewhere.177 An

employee within the Ministry of Culture contended that WH protection would be easier

if the East Rennellese people had access to alternative livelihood options.178 A SIG

employee formerly working within the National Commission for UNESCO made a

similar comment, contrasting East Rennell with Tetepare island, in the Western province

of Solomon Islands. He noted that because Tetepare is uninhabited, its customary owners

can access resources to support their livelihoods elsewhere, whereas East Rennell is all

that the East Rennellese have.179

These comments suggest that the SIG is unlikely to implement any legislation that

substantially restrains local peoples’ use and development of their land, unless the

measures have widespread local support. This finding helps explain why the Committee’s

calls for SIG to unilaterally ban logging and mining on Rennell continue to fall on deaf

ears (see 6.2.1). It does however place the government in a difficult position. Under the

Convention, it has an obligation to implement the legal measures required to protect the

site’s OUV, yet it perceives that it lacks the authority (legal or otherwise) to dictate how

customary landowners use their land and resources. As a conservation officer within the

Ministry of Environment stated:

Communities will always say they have a need for subsistence and income. Government will always say that it has international obligations. Getting the two to match up is difficult.180

It is unhelpful to advocate for the SIG to implement conservation measures that

fundamentally diverge from the views of Solomon Islanders concerning their customary

rights. It is therefore argued that future Committee resolutions need to better

accommodate the tension between SIG’s international obligations and its reverence for

customary rights (see 9.3.1).

176 Interview with Malchoir Mataki, Permanent Secretary of the Ministry of Environment (Honiara, 1 October 2013). 177 Ibid. 178 Interview with an officer in the Ministry of Culture (Honiara, 26 July 2013). 179 Interview with an officer in the Ministry of Education, who was formerly the focal point for World Heritage within the

Solomon Islands National Commission for UNESCO (Honiara, 28 July 2013). Tetepare is discussed further at 8.2. 180 Interview with a conservation officer in the Ministry of Environment (Honiara, 2 August 2013).

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6.6 Conclusion

Although East Rennell was inscribed on the WH List primarily based on its customary

protection, there has been little empirical research into how the customary system can

contribute to addressing the threats to the site’s OUV. The limited available literature

suggests that customary practices cannot deal with many of the key threats, and customary

governance is not strong. Further empirical research should not only document and assess

existing customs, but also explore the potential for the customary system to evolve and

adapt to meet new issues such as invasive species and climate change.

The disenchantment that many East Rennellese people have with the WH program, the

fact that their cultural values are not recognised in the site’s listing, and their

(understandable) economic aspirations, all pose challenges for the protection of the site

under custom. If the protection of East Rennell is to be pursued through the framework

of sustainable development, efforts to address the threats to the site’s OUV must be

pursued in conjunction with initiatives to improve the livelihoods of the East Rennellese

people. This will require improving communication and transport infrastructure, and

ensuring that they have access to sustainable food sources.

The management plan for East Rennell has not been effective in protecting the site, in

part because it lacks any basis under custom or State law. This feature, coupled with the

fact that the SIG is not charged with executing the plan, means that implementation relies

on the voluntary commitment of the East Rennellese people. The pressing livelihood

issues they face, and their limited capacity and resources for heritage protection, make it

unlikely that the management plan will be effective. There may be greater local impetus

for the implementation of a plan that has a strong grounding in custom and State law, and

which better reflects the cultural values and development aspirations of the East

Rennellese people.

The natural heritage values of East Rennell are also not strongly protected under State

law, as neither the SIG nor the Rennell Bellona provincial government have implemented

any legislation providing broad protection to the site. One reason for this is the perception

held by people working in SIG that the government’s role is to facilitate the preservation

of East Rennell by its owners and occupants, rather than to unilaterally restrict the use

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and development of the site. There are however a range of laws that could be used to

address the threats to the site, including legislation regarding the harvesting of species,

extractive industries, biosecurity and protected areas. The scope for this legislation to be

used by the East Rennellese people and the SIG to protect East Rennell’s OUV is explored

in the next two chapters.

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Chapter 7: The protection of Solomon Islands’ World Heritage through the implementation of laws concerning resource use and biosecurity

7.1 Introduction

As explained in chapter 6, the outstanding universal value (OUV) of East Rennell is

threatened by the over-harvesting of certain animals, logging and mining, invasive

species and climate change. Although the World Heritage (WH) Committee has called

upon Solomon Islands to take various steps to address these threats, the Solomon Islands

government’s (SIG’s) ability and willingness to comply has not yet been analysed. This

chapter and the next therefore explore these issues, through an analysis of relevant

legislation and its implementation in practice.

This chapter focuses on legislation concerning resource use (namely the taking of

particular species, and logging and mining) and biosecurity. It assesses the scope for these

laws to be utilised to address the threats to East Rennell, and in so doing to contribute to

the site’s protection. The next chapter considers the direct protection of the site under

protected area laws. The analysis in both chapters helps explain why Solomon Islands has

not complied with many of the Committee’s requests, and why East Rennell’s OUV is in

danger.

This chapter is based on relevant legislation and secondary literature in a range of

disciplines. It is also informed by the consultation process undertaken for this research,

as well as the author’s experience working as a lawyer in Solomon Islands, which

included advising landowners on matters such as extractive industries and conservation.

That work revealed numerous issues associated with implementing and enforcing

Solomon Islands’ legislation, which are explained in this chapter. By providing both legal

analysis and insights into how the legislation operates in practice, this chapter makes an

important contribution to our understanding of the protection of WH under Solomon

Islands’ law.

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The chapter begins with an assessment of laws that could be used to regulate the taking

of particular species, principally the Fisheries Management Act 2015 and the Forest

Resources and Timber Utilisation Act (Cap. 40) (the FRTU Act) (see 7.2). These laws

give relevant decision-makers the power to make Regulations or orders restricting the

taking of certain animals and plants, including some that are under threat at East Rennell.

However, as will be explained, using the laws to regulate harvesting is challenging,

particularly in remote areas.

At 7.3, key legislation concerning logging and mining is analysed, namely the FRTU Act,

the Mines and Minerals Act (Cap. 42) (the MM Act), the Environment Act 1998, and

provincial business licence ordinances (referred to collectively here as ‘resource laws’).

The analysis shows that resource laws give SIG officials the power to regulate and

prohibit logging and mining operations to protect WH. This finding is highly significant

because the Committee is calling upon Solomon Islands to ban these activities on Rennell

(see 6.2.1), there appears to be confusion within SIG about its ability to comply, and

substantial reform of resource laws in the short term is unlikely. The economic, social

and cultural factors influencing decision-making under these laws and government policy

more broadly are explored, providing insights into why developments that threaten East

Rennell continue to be approved.

The scope for customary landowners1 to protect WH under resource laws is also assessed.

As will be explained, under both the FRTU Act and the MM Act, landowner consent is

generally required before the relevant SIG decision-maker can approve a proposed

logging or mining operation. On the face of it, this requirement gives the landowners of

a WH site a powerful tool to protect their land against the impacts of extractive industries.

However, in practice, this power often rests with a few individuals within the landowning

community, for whom the incentive to authorise development may far outweigh any

concern for WH. As such, although many East Rennellese people currently oppose

logging and mining within the WH site, it is unclear whether they can prevent those

activities from occurring in the long term.

1 The terms ‘customary landowners’ and ‘landowners’ are used frequently in this chapter to describe the persons who, under

the FRTU Act or the MM Act, are required to provide their consent before the relevant SIG official can grant development approval for the activity. It is acknowledged that the use of those terms is problematic, as it over-simplifies the nature of customary land tenure. This issue was noted in 1.6.3, and is discussed further at 7.3.2.

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The chapter then briefly assesses the Biosecurity Act 2013, which provides the SIG with

several legal mechanisms that could be utilised to minimise the introduction and spread

of invasive species on Rennell. As this legislation only recently came into force, it

remains to be seen if it will be effective.

Overall, this chapter demonstrates that while legislation exists that could help address the

threats to East Rennell, implementing those laws to protect the site is difficult. Some

suggestions for steps that could improve the site’s protection are provided. However,

given the inherent challenges that exist, the site’s future is uncertain.

7.2 Protecting World Heritage by regulating the harvesting of

protected species

Protecting WH in Solomon Islands may require the harvesting of certain plants and

animals to be restricted. Indeed, the WH Committee has called upon Solomon Islands to

prevent the over-exploitation of coconut crabs and some marine species to protect East

Rennell’s OUV. As noted previously, Solomon Islands does not have any broad

threatened species legislation (see 6.5.1). However, as will be explained here, the

Fisheries Management Act 2015 could be used to regulate the harvesting of marine

species under threat at East Rennell. The FRTU Act could also be used to restrict the

taking of certain tree species, which could contribute to the preservation of the site’s OUV

(see 7.2.1). However, for several reasons implementing and enforcing these laws is

difficult (see 7.2.2).

7.2.1 The scope for World Heritage protection under laws regulating the taking of

protected species

The principal Act regulating the taking of marine species in Solomon Islands is the

Fisheries Management Act 2015. Among other things, this Act empowers the Minister

for Fisheries and the Director for Fisheries to make regulations, declarations and orders

regulating fishing. For example, if certain requirements are met, the Minister can declare

a species as protected or endangered.2 If such a declaration is made, the taking of the

2 Fisheries Management Act 2015 s 31(1).

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species is prohibited.3 A person who contravenes that restriction can be fined up to $SBD

500,000 (approximately $AU 81,000) and/or jailed for 6 months.4 The Minister also has

a broad power to make regulations,5 which could be exercised to restrict the harvesting

of marine species. In addition, the Director is empowered to make orders regulating

matters such as when fishing for a particular species can occur, the specifications and

quantity of fish that can be taken, and what gear and vessels can be used.6 If a person

breaches such an order they can be fined up to $SBD 5,000 000 (approximately $AUD

813,000) and/or imprisoned for 2 years.7 The Director can also introduce management

measures through the development of a Fisheries Management Plan, which has legal

effect when published in the Government Gazette.8

The Director and the Minister therefore have ample power under the Fisheries

Management Act to restrict the taking of marine species that are under threat at East

Rennell (which include coconut crabs, trochus and beche de mer – see 6.2.2). Indeed, the

harvesting of these species was until very recently regulated under the Fisheries

Regulations 1972.9 Among other things, these Regulations prohibited the taking of

trochus under 8cm in diameter, the catching of coconut crabs that were under 9cm long

or carrying eggs, and the taking of beche de mer.10 Thus, controls on the harvesting of

these species (which the WH Committee has been calling on Solomon Islands to

introduce) have existed for many years.

The Fisheries Regulations 1972 were repealed in January 2017.11 The author

subsequently made inquiries with the Ministry of Fisheries and was informed that the

harvesting of the abovementioned species was still restricted. However, it is unclear at

this stage what legal instrument contains these provisions. Regardless, it appears that new

Regulations concerning inshore fisheries will be gazetted under the Fisheries

3 Ibid s 31(2). 4 Ibid 31(3). 5 Ibid s 129. 6 Ibid s 22(3). 7 Ibid 22(4). 8 Ibid s 17. 9 These Regulations were made under s 20 of the Fisheries Ordinance 1972. They continued to have effect (until repealed)

pursuant to s 61(2) of the Fisheries Act 1998 and then s 130(2) of the Fisheries Management Act 2015. For a summary of the Fisheries Regulations 1972, see Stephanie Price et al, Environmental Law in Solomon Islands (Public Solicitor’s Office, Solomon Islands Government, 2015) 176-178.

10 Fisheries Regulations 1972 regs 6, 12, 13A. The prohibition on the taking of beche de mer has been subject to several amendments, pursuant to orders made by the Minister of Fisheries: see Price et al, above n 9, 191-192.

11 Fisheries Management Regulations 2017 reg 70(1)(a).

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Management Act in late 2017. Restrictions on the harvesting of coconut crabs, trochus

and beche de mer could be included in those new Regulations.

In addition to empowering the Director and Minister to regulate fishing, the Fisheries

Management Act establishes a regime for granting foreign fishing vessels access to

Solomon Islands’ waters, and for licensing commercial fishing.12 There is currently little

commercial fishing within the East Rennell WH site, due to the lack of a regular shipping

service between Rennell and Honiara.13 Therefore, these provisions are not analysed here.

However, they could become relevant to the protection of East Rennell if commercial

fishing pressures increase.

Solomon Islands also has legislation regulating the taking of tree species, however it

provides for a narrower range of regulatory mechanisms than the Fisheries Management

Act (perhaps because it is an older law). Under the FRTU Act, before a logging operator

can obtain a licence to log on customary land, it must enter into a ‘timber rights

agreement’ with the relevant customary landowners.14 The prescribed form for this

agreement specifies certain species that cannot be felled, unless this is unavoidable for

the construction of roads or yards.15 However, unlike most clauses in the timber rights

agreement, the protected species clause is negotiable,16 so logging operators can contract

out of it. The Forest Resources and Timber Utilisation (Protected Species) Regulations

2012 further restrict tree harvesting. They state that certain tree species cannot be felled

for sale or export, except for scientific research purposes as authorised under the Wildlife

Protection and Management Act 1998.17 In addition, other prescribed species can only be

exported in a milled timber form or product form.18

While the Fisheries Management Act 2015 and the FRTU Act provide some scope for

regulating the harvesting of important species, as noted in 6.5.1 Solomon Islands lacks

broad threatened species legislation. Consequently, some species are inadequately

protected under Solomon Islands’ law. For example, there is currently no mechanism for

12 Fisheries Management Act 2015 parts 5, 6. See also the Fisheries Management Regulations 2017. 13 Simon Albert et al, Survey of the Condition of the Marine Ecosystem within the East Rennell World Heritage Area, Solomon

Islands (University of Queensland, Solomon Islands Marine Ecology Laboratory, Griffith University and WWF-Solomon Islands, 2013) 36.

14 FRTU Act s 5. This requirement is explained further in 7.3.1(A). 15 Forest Resources and Timber Utilisation (Prescribed Forms) Regulations (Cap. 40) reg 5, form 4 (cl 18). 16 Confirmed by the Court of Appeal of Solomon Islands in Simbe v East Choiseul Area Council [1999] SBCA 9. 17 Forest Resources and Timber Utilisation (Protected Species) Regulations 2012 reg 3. 18 Ibid regs 4-5.

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regulating the harvesting of birds. The taking of birds has not yet been identified as a

specific threat to the OUV of the WH site. However, the island is renowned for its

avifauna,19 and the site’s bird life was one of the attributes that led to it being inscribed

on the WH List (see 5.3.1). Hence, the regulation of bird harvesting could be relevant to

the site’s protection. The Wild Birds Protection Act (Cap. 45) previously made it unlawful

to kill or harm certain birds or their eggs, without the approval of the Minister for

Environment.20 The birds covered by that Act included some found on Rennell, such as

osprey, white eyes, kingfishers, and ground doves.21 However, the Act was repealed in

200322 and has not been replaced.

In Solomon Islands, provincial governments also have the power to enact laws concerning

the taking of species. For example, the Western Province Fisheries Ordinance 2011

regulates the taking of some marine animals and prohibits some harvesting methods.

However, there is no such ordinance for the province of Rennell and Bellona. As such,

the only State laws regulating the taking of species at East Rennell are national laws.

7.2.2 Protecting World Heritage through laws regulating the taking of protected

species: The legislation in context

As explained in 2.4.1, ensuring compliance with State laws relevant to heritage protection

in Solomon Islands is difficult. Reasons for this include the government’s strong desire

for economic development, governance issues, the irrelevance of the State legal system

to much of the rural population, and the logistical difficulties of implementing and

enforcing State laws, particularly on remote islands. These challenges clearly hamper the

effectiveness of laws regulating species harvesting. Issues of particular relevance to the

use of these laws at East Rennell are elaborated on below. The analysis helps explain why

the harvesting of coconut crabs and certain marine species continues to threaten the site’s

OUV.

19 See, eg, Christopher E Filardi et al, ‘New Behavioral, Ecological, and Biogeographic Data on the Avifauna of Rennell,

Solomon Islands’ (1999) 53(4) Pacific Science 319. 20 Wild Birds Protection Act (Cap. 45) ss 3, 12. The birds covered by these provisions were listed in the schedule to the Act: s

2. 21 See, eg, Elspeth J Wingham, Nomination of East Rennell, Solomon Islands by the Government of Solomon Islands for Inclusion

in the World Heritage List Natural Sites (1997) 43-44. 22 Wildlife Protection and Management Act 1998 s 38. This Act came into force in 2003.

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(I) Many people lack awareness and understanding of harvesting laws

In Solomon Islands, the State legal system is of marginal significance to much of

the population.23 Consequently, many Solomon Islanders would be unaware of

the existence of laws regulating harvesting and the restrictions imposed under

them. This is particularly the case for people living in rural areas such as Rennell,

where the national government is effectively absent. The laws that have enjoyed

greatest success relate to ‘high profile’ species. For example, the prohibition on

the capture of dolphins for sale or export24 has been an important step towards

reducing this practice in Solomon Islands.25 However, in general, State legal rules

regulating harvesting are not well known among much of the population, and any

steps taken by the government to address this issue have been limited. When the

author was working in East Rennell, there was no evidence that the government

had made any recent effort to disseminate information about harvesting laws to

the local communities.

(II) The restrictions on the taking of some species have changed frequently

Since independence, Solomon Islands has experienced significant political

instability, with government leaders and Ministers frequently changing. As

harvesting laws are not based on well-established policy, they have been amenable

to decisions of the government of the day. For example, some laws regulating the

taking of commercially valuable species (including beche de mer, which is under

threat at East Rennell) have been amended several times, as different people take

over the relevant Ministerial position.26 This decreases their effectiveness.

(III) People often have little incentive to comply with the laws

Solomon Islanders have little incentive to comply with State laws regulating the

23 See, eg, Matthew Allen et al, Justice Delivered Locally: Systems, Challenges and Innovations in Solomon Islands (World

Bank, 2013) 45. For further discussion of the (ir)relevance of the State legal system in Solomon Islands, see 2.4.1(B). 24 Fisheries (Prohibition of Export of Dolphins) Regulations 2013 reg 3. These regulations were recently repealed: Fisheries

Management Regulations 2017 reg 70(1)(e). Restrictions on the capture of dolphins are not found in the Fisheries Management Regulations 2017 reg 20.

25 See, eg, Francis Pituvaka, ‘Dolphins Freed After Raid’, The Solomon Star (online), 1 November 2016 <http://www.solomonstarnews.com/news/national/11645-dolphins-freed-after-raid>. Pituvaka writes about the release of dolphins that were captured and held in contravention of the Fisheries (Prohibition of Export of Dolphins) Regulations 2013.

26 Price et al, above n 9, 191.

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taking of species, particularly those that are inconsistent with customary

harvesting rights. Any such inconsistency may also reduce the likelihood of the

State enforcing the restriction. For example, when interviewed for this research a

SIG employee formerly working within the National Commission for UNESCO

commented:

On Rennell, if the government makes a rule that says that people can’t take coconut crab, and a person from there wants to take coconut crab, how do we [the government] tell them that they can’t?

This challenge relates to the issue of the ownership of natural resources, which is

explored further in the context of extractive industries at 7.3.2.

A further disincentive for compliance is that some Solomon Islanders rely on

resource harvesting for their livelihoods. As the author observed, coconut crabs

taken by the East Rennellese are often sold in Honiara, or to loggers and miners

in West Rennell, providing locals with a rare income opportunity. Furthermore,

the penalties for non-compliance are generally insufficient to promote

compliance. For example, the maximum fine for taking undersized trochus in

contravention of the Fisheries Regulations 1972 was $SBD100 (approximately

$AUD16).27 While this is a significant amount of money for some Solomon

Islanders, it is unlikely to have deterred many involved with commercial

harvesting, particularly given the lack of monitoring and enforcement of these

laws (see below). It is notable that the fines for non-compliance with restrictions

imposed under the more recent Fisheries Management Act 2015 are significantly

higher (see 7.2.1).

(IV) There is little monitoring and enforcing of these laws by the relevant Ministries.

Monitoring and enforcing harvesting laws is difficult given the government’s

limited human and financial resources and the country’s geography. No staff from

the Ministries responsible for these laws are permanently stationed on Rennell,

making it difficult for government officers to identify and investigate breaches. In

the absence of an effective monitoring and enforcement system, compliance with

these laws is essentially voluntary and (as noted above) there is little incentive for

people to comply. Consequently, on Rennell laws such as the Fisheries

27 Fisheries Regulations 1972 reg 6.

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Regulations 1972 have rarely, if ever, been enforced.28

A significant challenge for WH protection in Solomon Islands is therefore that many laws

regulating species harvesting are ineffective. The compilation of consolidated and up to

date versions of the relevant legislation, and the creation and distribution of copies of the

rules in a format readily understandable by those involved with harvesting may be

beneficial. Substantially increasing the resources available to the relevant Ministries to

monitor and enforce the laws would also assist, but is unlikely without funding from

donors or other States. Increasing the penalties for non-compliance, and assisting people

involved with harvesting to undertake alternative and sustainable livelihood activities,

could also reduce over-harvesting.

The use of such laws to protect WH will however always be difficult, given their potential

inconsistency with customary rights and the reliance of local people on the resources for

their livelihoods. As such, the Protected Areas Act 2010 (the PA Act - analysed in chapter

8) may be a better approach to addressing this threat. Regardless of the approach taken,

information on the harvesting that is occurring at East Rennell should be collected, to

inform future efforts to protect that site. As noted in 6.2.2, at present there is limited data

on what species are being taken, by whom, using what methods, and for what purpose.

This information could help inform appropriate management responses, and ensure that

the limited resources available for addressing this threat are used efficiently.

7.3 Protecting World Heritage by regulating logging and mining

As explained in 6.2.1, logging and mining in East or West Rennell could impact the OUV

of the WH site. The WH Committee has called upon Solomon Islands to mitigate the

impacts of existing logging and mining operations on Rennell, and not approve further

developments until a new management plan is being implemented. Under the Pacific

World Heritage Action Plan 2016 – 2020, a national level action for Solomon Islands is

to ensure that logging and mining does not occur within the WH site or ‘surrounding areas

that support the ecological functionining’ of the property, through the completion of an

appropriate ‘legal framework.’29 However, this action has not yet been implemented, and

28 Paul Dingwall, Report on the Reactive Monitoring Mission to East Rennell, Solomon Islands, 21 – 29 October 2012 (IUCN,

2013) 21. 29 Pacific World Heritage Action Plan 2016 – 2020 (2016) 17. For discussion of the Action Plan see 1.2.3.

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logging and mining companies continue to operate in West Rennell. Furthermore, it is

unclear what form of ‘legal framework’ the SIG is expecting to develop to complete this

action.

Pursuant to Solomon Islands’ resource laws,30 the principal approvals required to conduct

logging or mining31 on customary land32 are:

the consent of the customary landowners;33

for logging, a felling licence granted by the Commissioner for Forests under the

FRTU Act;34

for mining, a mining tenement (namely a prospecting licence or mining lease)

granted by the Minister for Mines under the MM Act;35

a development consent granted by the Director of Environment under the

Environment Act 1998;36 and

a business licence granted by the relevant provincial assembly under its provincial

ordinance.37

The processes for obtaining these approvals are analysed below to determine the scope

for customary landowners and the SIG to regulate logging and mining to protect WH (see

7.3.1). The implementation of resources laws in practice will then be explored, to identify

key challenges associated with protecting WH against the impacts of these industries (see

7.3.2). Before commencing this analysis three preliminary points will be made.

Firstly, East Rennell is not the only WH site threatened by the impacts of extractive

industries.38 The impact of mining on WH is of particular concern to the international

30 The term ‘resource laws’ is used here to refer collectively to the FRTU Act, the MM Act, the Environment Act and provincial

business licence ordinances. 31 The term ‘mining’ is used here to mean prospecting or mining, unless the context dictates otherwise. The other stage of the

mining process regulated under Solomon Islands’ law (reconnaissance) is not considered here, because it is not commonly undertaken in Solomon Islands: Price et al, above n 9, 127.

32 This analysis is restricted to considering logging and mining on customary land because most land in Solomon Islands is under customary tenure (see 2.3.5).

33 FRTU Act s 5; MM Act ss 21, 36(a). 34 FRTU Act ss 4(1)(d), 5. A licence is not required if the Minister exempts the applicant from this requirement (s 4(1)(c)), if the

trees are felled for use as firewood or unmilled timber (s 4(1)(a)) or if the trees are felled to supply logs to a licenced mill (s 4(1)(b)).

35 MM Act ss 20(1), 36. The Minister does however have the power to compulsorily acquire land for mining (as distinct from prospecting) (MM Act s 33(1)).

36 Environment Act 1998 s 19(1)(b). The Director can grant an exemption from this requirement (s 19(1)(c)). 37 For example, Rennell and Bellona Province Business Licence Ordinance 1995 ss 3 – 4. 38 World Wide Fund for Nature has found that nearly 31% of natural WH sites are subject to active mining activity (defined as

‘commercial exploration, extraction and processing of minerals, metals, hydrocarbons and other geological materials’) within their borders, or concessions that could allow such operations to occur in the future: see World Wide Fund for Nature, Safeguarding Outstanding Natural Value: The Role of Institutional Investors in Protecting Natural World Heritage Sites from Extractive Activity (2015) 10, 36. See also UNEP-WCMC (United Nations Environment Programme World Conservation Monitoring Centre), Identifying Potential Overlap Between Extractive Industries (Mining, Oil and Gas) and Natural World Heritage Sites (2013).

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community, and the WH Committee has called upon all State parties and industry

stakeholders not to permit mining within any listed sites.39 The international community’s

concerns regarding this issue are reflected in the WH Sustainable Development Policy,

which was recently adopted by the General Assembly of State parties to the Convention.40

That document notes that extractive industries pose considerable challenges to heritage

protection,41 and reiterates the Committee’s calls for WH sites to be a no-go zone for such

operations.42 It demonstrates that addressing the threat to WH posed by extractive

industries is firmly on the international community’s agenda.

Secondly, Solomon Islands is not the only country facing the difficult task of trying to

protect WH from the impacts of extractive industries whilst also facilitating economic

development. However, regulation of logging and mining in Solomon Islands differs from

many other places because of the landowner consent requirements under the FRTU Act

and the MM Act (7.3.1(A)) and the belief held by some people within SIG that the

government lacks the power to prohibit operations that are supported by the landowners

(see 7.3.2). Consequently, protecting Solomon Islands’ WH from the impacts of these

industries could require a different response to that which is effective in other States. The

analysis in this chapter is critical to understanding the particular opportunities and

challenges that exist in Solomon Islands.

Finally, protecting WH against the impacts of logging and mining requires a range of

actions. While this chapter focuses on legal regulation, it is acknowledged that the other

factors that lead companies to operate in and around heritage sites, and financial

institutions to fund such operations, need to be addressed. These include the failure of

some companies and institutions to undertake sufficient due diligence before becoming

involved with projects that affect WH.43 The self-regulation of the resource sector also

needs to be supported. Increasingly, some international organisations,44 large companies45

39 WHC Res 37 COM 7, WHC 37th sess, UN Doc WHC-13/37.COM/20 (5 July 2013) 53, 54. 40 Policy for the Integration of a Sustainable Development Perspective into the Processes of the World Heritage Convention,

WHC GA Res 20 GA 13, 20th sess, UN Doc WHC-15/20.GA/15 (20 November 2015) 7. See 4.3.1 for discussion of the policy.

41 Ibid para 24. 42 WHC Res 37 COM 7, WHC 37th sess, UN Doc WHC-13/37.COM/20 (5 July 2013) 53, 54. 43 World Wide Fund for Nature, above n 38, 15. 44 International Council of Mining and Metals, Mining and Protected Areas Position Statement (2003)

<http://www.icmm.com/en-gb/about-us/member-commitments/position-statements/mining-and-protected-areas-position-statement>. The International Council of Mining and Metals is an international organisation of 23 mining and metals companies (including BHP Billiton and Rio Tinto) and 34 regional and commodities associations.

45 See, eg, UNESCO, UNESCO Welcomes Pledge by Royal Dutch / Shell to Stay Out of World Heritage Sites (27 August 2003) <http://portal.unesco.org/en/ev.php-URL_ID=14175&URL_DO=DO_TOPIC&URL_SECTION=201.html>; UNESCO, World Heritage and Extractive Industries <http://whc.unesco.org/en/extractive-industries/>; UNESCO, UNESCO Welcomes

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and financial institutions46 have pledged not to operate in or fund resource extraction

operations that may threaten WH sites, making an important contribution to the protection

of such places. However, with one exception, the companies that have operated on

Rennell have not been major enterprises with international shareholders, and thus

reputations to protect.47 The island is too small and remote to attract companies of that

type. Consequently, there is little self-regulation of resource industries in Rennell, and

pledges such as those referred to above have little or no effect there. This heightens the

importance of the legal regulation of these operations in Solomon Islands.

7.3.1 The scope for World Heritage protection under laws regulating the logging

and mining industries

This part of the chapter considers the legal ability of (A) the landowners of a WH site and

(B) the SIG to protect WH against the impacts of logging and mining. This involves an

analysis of the relevant legislation only. The operation of the legislation in practice is then

considered in 7.3.2.

(A) The protection of World Heritage by the site’s customary landowners

In general, under Solomon Islands’ law, customary landowners have the power to dictate

whether their land is logged or mined, giving them significant power to protect their land

against the impacts of these activities (see (I)). They also have the right to object to

logging and mining on other land, if those operations would affect them (see (II)).

However, they have little power to cease operations that have already been approved (see

(III)).

Growing Commitment by Oil, Gas and Mining Companies to Keep Out of World Heritage Sites (3 February 2014) <http://whc.unesco.org/en/news/1101> (which refers to a no-go pledge made by French-based oil and gas company Total); UNESCO, UNESCO and IUCN Welcome New No-Go Pledge for World Heritage Sites by Tullow Oil (12 November 2015) <http://whc.unesco.org/en/news/1379/>.

46 See, eg, HSBC, World Heritage Sites and Ramsar Wetlands Policy (2014). In this policy, HSBC pledges to not knowingly provide financial services directly to projects that threaten WH sites: at 1.

47 Tony Hughes and Ali Tuhanuku, Logging and Mining in Rennell: Lessons for Solomon Islands. Report to the World Bank and Solomon Islands Government (2015) 19. The exception is Mitsui Mining and Smelting Ltd, which conducted prospecting for bauxite in the 1970s.

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(I) The landowners of a World Heritage site could refuse to grant consent to logging

and mining operations on their land

Except in limited circumstances, under the FRTU Act and the MM Act a person

who wishes to undertake logging and mining on customary land must first obtain

the consent of the landowners.48 Both laws prescribe several steps that must be

completed before this consent can be given.49

Under the FRTU Act, before the Commissioner for Forests can grant a felling

licence over customary land, the applicant must complete the process prescribed

in part III of the Act (often referred to as the ‘timber rights process’).50 In

summary, this involves the applicant applying to the Commissioner for consent to

negotiate with the owners of the land.51 If the application is approved, the relevant

provincial executive organises a meeting between the applicant and the

landowners.52 At this meeting, the provincial executive makes a determination

concerning several matters, including whether the landowners wish to grant the

applicant ‘timber rights’, and whether the persons proposing to grant those rights

are lawfully entitled to do so.53 If the provincial executive answers those questions

in the affirmative, the applicant can enter into a ‘timber rights agreement’ with the

landowners’ representatives, which must be in the prescribed form.54 The

Commissioner may then grant the applicant a felling licence.55

The MM Act does not prescribe a ‘mining rights process’ that is equivalent to part

III of the FRTU Act. Under the MM Act, if an application for a mining tenement

is deemed to be acceptable by the Minerals Board,56 the Minister for Mines must

issue the applicant with a ‘letter of intent’ indicating he or she intends to grant the

48 FRTU Act s 5; MM Act ss 21, 36(a). The Minister for Forests can however exempt a person from requiring a felling licence

(FRTU Act s 4(1)(c)), in which case the applicant does not need to obtain the consent of the landowners for logging (confirmed by the High Court of Solomon Islands in Alevangana v Kegu [2012] SBHC 1). The Minister for Mines can compulsorily acquire land for mining (as distinct from prospecting) (MM Act s 33(1)), which would mean that landowner consent for that operation is not required.

49 For detailed analysis of this process, see Price et al, above n 9, 76-97. 50 FRTU Act s 5(1)(c). 51 Ibid s 7(1). 52 Ibid s 8(1). 53 Ibid. 54 Ibid s 8(4); Forest Resources and Timber Utilisation (Prescribed Forms) Regulations (Cap. 40) reg 5. 55 FRTU Act s 5(1). 56 The Minerals Board is established under the MM Act, and its functions include advising the Minister on the grant of mining

tenements: MM Act ss 10-11.

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approval if surface access rights are secured.57 The applicant must then negotiate

with the ‘landowners or any person or groups of persons having an interest’ in the

land, with a view to obtaining surface access rights.58 If an agreement is reached,

the applicant and the landowners’ representatives can enter into a ‘surface access

agreement’ and, subject to the requirements of the Act, the Minister for Mines can

grant the mining tenement.59

The landowner consent provisions of the FRTU Act and the MM Act therefore give

the owners of a WH site a powerful tool to protect their land from the impacts of

logging and mining. Given the reluctance of SIG decision-makers to refuse

approval for projects that are supported by the landowners (see 7.3.2), the

decisions that the owners of a WH site make with respect to such developments

are central to the site’s protection. Even if the landowners approved a

development, they could seek to include in their agreement with the operator

conditions designed to minimise its impact on heritage. As will be explained in

7.3.2 however, in practice the power of landowners to protect WH is more limited.

(II) The landowners of a World Heritage site could object to the approval of

operations that would affect their land

People who may be affected by a logging or mining project on land that they do

not own have no formal avenue under the FRTU Act or the MM Act to object to

the approval of that project. They are however entitled to object to the grant of a

‘development consent’ by the Director of the Environment and Conservation

Division of the Ministry of Environment, under the Environment Act60 (see

7.3.1(B) for further discussion of the development consent process). The objection

must be lodged within 30 days of the publication of the project’s environmental

impact assessment (EIA) report.61 The Director must consider any such objections

when deciding whether to grant a development consent for the project.62

57 MM Act ss 21(1)-(2); 32(1). 58 Ibid ss 21(4)(a)-(b); 32(4). 59 Ibid ss 19, 36(a). 60 Environment Act 1998 ss 22(2), 24(2). 61 Ibid. An application for a development consent must be accompanied by a Public Environment Report or an Environmental

Impact Statement (collectively referred to here as an Environmental Impact Assessment (EIA)) unless the Director has granted the proponent an exemption from this requirement: Environment Act 1998 ss 17(2), 17(4).

62 Ibid ss 22(4), 24(3).

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The landowners of a WH site could therefore object to the grant of a development

consent for operations on surrounding land that would affect the OUV of the site.

This is significant for the protection of East Rennell, which is threatened by

logging and mining occurring in West Rennell. The amendment of the FRTU Act

and the MM Act to give third parties the right to object to the grant of logging and

mining approvals would strengthen the East Rennellese peoples’ power to protect

the site against these activities.

(III) The landowners of a World Heritage site have little power to halt logging and

mining operations that have already been approved

An agreement between customary landowners and a logging company (a ‘timber

rights agreement’) must be in the prescribed form.63 Most of the clauses of the

agreement cannot be altered by the parties, including the clause regarding

termination.64 While that clause allows a logging company to terminate the

agreement by giving the landowners one month’s written notice, that right is not

reciprocal. Even if the logging company is in breach, the agreement only entitles

the landowners to serve the company with a default notice. If the company fails

to comply with the notice within a month, it must suspend its operations until it is

in compliance.65 Landowners therefore have limited capacity to terminate timber

rights agreements.66 Furthermore, these agreements do not come to an end merely

because a felling licence has expired.67

Unlike for a timber rights agreement, there is no prescribed form for a mining

‘surface access agreement’. Landowners and mining companies are free to

negotiate and agree upon a termination clause for inclusion in their agreement. In

practice however, because of the large investment required for most mining

operations, it is unlikely that a company would enter into an agreement that gives

the landowners a broad right to terminate.

63 Forest Resources and Timber Utilisation (Prescribed Forms) Regulations (Cap. 40) form 4. 64 Ibid. For discussion of the ability of landowners to negotiate the terms of a timber rights agreement see Price et al, above n 9,

90-94. 65 Forest Resources and Timber Utilisation (Prescribed Forms) Regulations (Cap. 40) form 4 cl 38. 66 For further discussion see Price et al, above n 9, 93-94. 67 Linear Perspective Ltd v Attorney General [2011] SBHC 18.

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Consequently, if the East Rennellese ever approved logging or mining within the

WH site, it is unlikely that they could subsequently retract their authorisation.68

Similarly, even if the landowners of West Rennell wanted the logging and mining

of their land to cease, they have little capacity to achieve this. This heightens the

importance of the regulation of these operations by the SIG, which is explored

below.

(B) The protection of World Heritage by the Solomon Islands government

Some people working within the SIG have contended that the government lacks the power

to prevent logging and mining from impacting the East Rennell WH site. This is evident

from several documents submitted by the SIG to the WH Committee. For example,

Solomon Islands’ 2013 State party report says that the SIG:

does not have the power to prevent and/or halt applications for commercial logging or mining activities on customary owned areas should application(s) are compatible with SICOLP [the Solomon Islands Code of Logging Practice], unless the proposal is going to be conducted on a protected area under the Environment Act 1998 [sic]. 69

A similar contention is contained in Solomon Islands’ 2014 State party report, which is

the most recent one submitted by the SIG.70 It is unclear whether the authors of these

reports were contending that the SIG lacks the legislative power to halt logging or mining

on Rennell, or that the practical and ethical challenges associated with that task render it

impossible. The SIG’s recent request for legal advice on the Minister for Environment’s

power to prohibit these operations71 suggests that there is at least some uncertainty

regarding the scope of the government’s legal powers.

The lack of clarity around this issue highlights the importance of the analysis in this part

of the chapter. That analysis shows that under existing laws, SIG decision-makers could

refuse to approve new logging and mining developments if they would have an

unacceptable impact on WH (see (I)). Alternatively, they could grant approvals subject

to conditions designed to minimise that impact (see (II)). In addition, existing approvals

68 Although the landowners are unlikely to have grounds for ending the agreement based on breach of contract, there may be

equitable causes of action open to them such as unconscionable conduct or duress. 69 Solomon Islands Government, State Party Report on the State of Conservation of the East Rennell World Heritage Area

(Solomon Islands) (SIG, 2013) 6. This statement is incorrect because protected areas cannot be established under the Environment Act 1998. Presumably the reference to the Environment Act 1998 in this statement should have been to the Protected Areas Act 2010 (which is analysed in chapter 8).

70 Solomon Islands Government, State Party Report on the State of Conservation of the East Rennell World Heritage Area (Solomon Islands) (SIG, 2014) 3.

71 State of Conservation of the Properties Inscribed on the List of World Heritage in Danger, WHC 39th sess, UN Doc WHC-15/39.COM/7A.Add (29 May 2015) 19 (East Rennell, Solomon Islands) 20.

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for these operations could potentially be cancelled (see (III)). However, legislative

amendment to clarify these powers would be beneficial.

(I) Applications for logging and mining approvals could be refused if the operations

were likely to impact World Heritage

The FRTU Act

Under the FRTU Act, decisions concerning the grant and cancellation of felling

licences are made by the Commissioner for Forests.72 The Minister for Forests

does not have the power to prohibit the grant of new approvals or halt existing

logging operations.73

The FRTU Act does not prescribe the matters that the Commissioner must

consider when determining a felling licence application, and there is no express

reference to WH in the Act. Nevertheless, several provisions indicate that the

likely impact of a logging proposal on natural and cultural heritage is a relevant

consideration. For example, the Commissioner is not entitled to grant a felling

licence unless the applicant has agreed to, inter alia, take measures to prevent soil

erosion and conserve the environment, river catchment areas, tambu74 places and

sites of historical importance.75 All logging is prohibited within certain

environmentally and culturally sensitive areas unless the operator has the further

approval of the Commissioner.76 In addition, the Commissioner can require the

licensee to comply with the Revised Solomon Islands Code of Logging Practice

2002,77 which contains several clauses aimed at minimising the impact of logging

operations on heritage. Based on these provisions, it is arguable that the

Commissioner could refuse to grant a felling licence for a proposed operation on

Rennell if it was likely to damage the WH site.

Despite this finding, the amendment of the FRTU Act to make the likely impact

72 FRTU Act ss 5, 39. 73 Confirmed by the High Court of Solomon Islands in Pitanoe v Minister for Forestry, Environment & Conservation [1998]

SBHC 56. 74 Tambu is a word in Solomon Islands’ pijin meaning taboo. A tambu site is a place of historical and cultural significance to the

local people. 75 FRTU Act s 5(2)(c)(iv). 76 Forest Resources and Timber Utilisation (Felling Licences) Regulations 2005 regs 13(1)(b), 13(1)(d). 77 Ibid reg 10(f); Solomon Islands Ministry of Forests, Environment and Conservation, The Revised Solomon Islands Code of

Logging Practice (Solomon Islands Government, 2002).

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of a logging proposal on heritage an express relevant consideration would be

beneficial. Any ambiguity as to the scope of the Commissioner’s power is likely

to exacerbate his or her reluctance to refuse licence applications that are supported

by the landowners (see 7.3.2). It would also be beneficial if a national WH policy

was developed, to raise the profile of the Convention within the country and

further reinforce that the impact of development proposals on heritage is a relevant

consideration that decision-makers must consider.

The MM Act

Like the FRTU Act, the MM Act does not expressly refer to WH. However, several

provisions of that Act and the Mines and Minerals Regulations 1996 (the MM

Regulations) demonstrate that environmental and cultural impacts are relevant to

the Minister for Mine’s decision as to whether to grant a mining tenement.

For example, an application for a mining lease must include, among other things,

an environmental assessment that explains how the impacts of the proposed

development on air, land and waters will be monitoring and minimised, and how

the area will be rehabilitated.78 Before granting a mining lease, the Minister must

be satisfied of a range of matters, including that the environment within and

outside the mining area will be adequately protected.79 The Act also prohibits

mining in certain areas, including tambu and other sites of traditional significance,

except with the written consent of the landowners.80 Pursuant to the MM

Regulations, tenement holders must conduct their operations in a way that

minimises ecological damage81 and avoids harm to fresh water, marine and animal

life.82 There is therefore scope for the Minister to refuse to grant a mining

tenement on the grounds it would damage WH. As for logging, legislative

amendment to clarify this, and the development of a national WH policy, would

be beneficial.

78 MM Act s 31(1)(h). 79 Ibid s 36(b)(ii) 80 Ibid s 4(2)(a). 81 MM Regulations reg 18(b). 82 Ibid reg 18(f).

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The Environment Act

In addition to obtaining an approval under the FRTU Act or the MM Act, a person

wishing to conduct logging or mining in Solomon Islands requires a development

consent granted under the Environment Act (unless they have received an

exemption from this requirement).83 Applications for development consents are

determined by the Director of the Environment and Conservation Division of the

Ministry of Environment.84 The Minister for Environment cannot veto such an

application, or cancel an existing consent, so has no direct power to protect WH

against the impacts of logging and mining.

When determining a development consent application, the Director must consider

a range of matters including the impacts of the proposal on ‘the environment’, as

determined through an EIA.85 ‘Environment’ is defined broadly in the Act to

include natural and social systems, including people, communities, and economic,

aesthetic, cultural and social elements.86 The Director is also required to take into

account the objects of the Environment Act, which include complying with

international conventions and obligations regarding the environment.87 Pursuant

to the Environment Regulations 2008, the Director cannot grant a development

consent if it would mean that Solomon Islands would breach an obligation under

an international convention.88

The Director therefore clearly has the power to refuse to approve logging and

mining operations that would negatively impact a WH site. Indeed, the Director

may be legally bound to do so, if a project’s impacts would be sufficiently severe

to cause Solomon Islands to breach its protection obligations under the

Convention. This is likely to be the case for any proposal to conduct logging or

mining in East Rennell, given how damaging such an activity would be to the

site’s WH values.

83 Environment Act 1998 ss 19(1)(b)-(c). 84 Ibid ss 22(3), 24(3). 85 Ibid s 15. 86 Ibid s 2. 87 Ibid ss 3(c)-(d). 88 Reg 14(1)(d).

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Business licence ordinances

Provincial governments do not have the power to veto development proposals

under the FRTU Act, the MM Act or the Environment Act. However, each province

has an ordinance that requires business operators to be licenced. Whether a licence

could be refused for a logging or mining proposal that threatens WH depends on

the terms of the ordinance. For example, under the Choiseul Province Business

Licence Ordinance 2011 a licence cannot be granted for a business that will cause

undue harm to the province or its people.89 If a proposed logging or mining

operation was likely to have a significant impact on an environmentally or

culturally significant place such a WH site, it is arguable that a licence could be

refused under that provision. The Rennell and Bellona Provincial Business

Licence Ordinance 1995 does not prescribe any matters that must be taken into

consideration in the determination of a licence application. It is still arguable

however that a business that would damage the environment or a cultural site

could be refused a licence under that ordinance.

(II) New approvals granted for logging and mining could include conditions designed

to minimise the impact of the operations on World Heritage

Felling licences, mining tenements, development consents and business licences

can be granted subject to conditions.90 These conditions could include

requirements designed to minimise the impact of the proposed operations on WH.

For example, a felling licence for logging in West Rennell could be subject to a

condition that requires certain areas to be avoided, to maintain ecological

corridors across the island. A condition requiring barges and log ponds to be

baited, to minimise the spread of black ship rats across the island, could also be

imposed. The monetary penalty for non-compliace with such a condition is

relatively low (a fine of up to $SBD 3,000, which is approximately $AUD 490),91

reflecting the age of logging legislation in Solomon Islands. A more serious

consequence of a breach is that it would give the Commissioner for Forests

grounds to cancel the felling licence92 (discussed further below). Ensuring

89 Cl 15(1)(c). 90 FRTU Act s 5(2); MM Act ss 22(h), 38(1)(e); Environment Act 1998 ss 22(3), 24(3); Interpretation and General Provisions

Act (Cap. 85) s 30(1)(c). 91 FRTU Act s 4(1). 92 Ibid s 39.

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compliance with such conditions would however require substantial

improvements in the monitoring and enforcement of the FRTU Act (see 7.3.2).

(III) Existing government approvals for logging and mining could be cancelled, if the

operators were in breach of relevant laws and conditions

Pursuant to the FRTU Act, the Commissioner for Forests has the power to cancel

a felling licence if the licensee is in breach of the Act or the conditions of the

licence.93 The Minister for Mines has an equivalent power to cancel mining

tenements under the MM Act.94 The Environment Act does not expressly state that

the Director can cancel development consents, but that power is implied under the

Interpretation and General Provisions Act (Cap. 85).95

There has been no investigation into whether the companies conducting logging

or mining in West Rennell have complied with all relevant laws and conditions.

However, given that in Solomon Islands such developments frequently occur in

contravention of legal requirements (see 7.3.2), it is likely that at least some of the

companies operating on Rennell have committed breaches. If so, one or more of

their development approvals could be cancelled. In the unlikely event that the

companies are in full compliance with all relevant laws and conditions, legislative

amendment would be required to halt their operations.

7.3.2 Protecting World Heritage through laws regulating logging and mining: The

legislation in context

The previous section demonstrated that landowners and SIG decision-makers have certain

powers that could be exercised to protect a WH site from the impacts of logging and

mining. However, the legislative provisions are only part of the story. This section

therefore considers the implementation of this legislation in practice. It is based on key

secondary literature concerning the logging and mining industries, particularly a recent

report by Tony Hughes and Ali Tuhanuku prepared for the World Bank and the SIG96

93 FRTU Act s 39. 94 MM Act s 71(1). 95 S 30(1)(e). 96 Hughes and Tuhanuku, above n 47.

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which provides invaluable insights into operations on Rennell. Knowledge about the

operation of resources laws gained by the author while working in Solomon Islands is

also drawn upon.

The analysis identifies six key issues, all of which influence the ability and/or willingness

of landowners and SIG to protect WH:

(I) resources legislation is often implemented in a way that allows logging and

mining to occur without the consent of all landowners;

(II) landowners often have little capacity to object to developments on neighbouring

land;

(III) the incentives for landowners to support extractive industries may outweigh

concerns for WH;

(IV) the incentives for SIG decision-makers to support extractive industries may

outweigh concerns for WH;

(V) SIG decision-makers are reluctant to make decisions on development approval

applications that are contrary to the wishes of the landowners; and

(VI) the lack of compliance with and enforcement of resource legislation means

logging and mining in Solomon Islands is often unlawful.

Each of these issues is explored in detail below.

(I) Resources legislation is often implemented in a way that allows logging and

mining to occur without the consent of all landowners

As will be explained, despite the requirement for landowner consent under the

FRTU Act and the MM Act, in practice operations commonly occur without the

approval of all relevant landowners. Key reasons for this are inadequacies in the

drafting of the legislation and a lack of government oversight of the consent

process, which leaves it highly vulnerable to exploitation.

Under the FRTU Act, landowner consent for logging proposals is given through

the ‘timber rights process’ (see 7.3.1(A)). This process was inserted into the Act

in 1977,97 when the logging industry expanded its operations from land owned or

97 Pursuant to the Forest and Timber Amendment Act 1977.

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leased by the government onto customary land.98 However, the purpose of these

provisions was not to protect landowners, but to give logging companies someone

with whom to make an agreement.99 Consequently, the legislation incorporates

inadequate checks and balances to ensure that logging agreements are only made

with the consent of all relevant landowners. In practice, these provisions are often

manipulated by powerful individuals within landowning groups who declare

themselves entitled to grant ‘timber rights’ notwithstanding the true customary

position.100 Logging companies are frequently happy to enter into agreements

with such persons to facilitate the development of the land. As a result, the FRTU

Act has effectively enabled ‘people with tenuous claims, or even no claims at all,

to become the principal beneficiaries’ of logging operations.101

The landowner consent process under the MM Act differs to that under the FRTU

Act (see 7.3.1(A)). There is no ‘mining rights process’ for the identification of the

customary landowners. Rather, an applicant for a mining tenement is responsible

for identifying the people with whom it must make a ‘surface access agreement’

with.102 The MM Act has been analysed less than the FRTU Act,103 because until

recently relatively little mining had occurred in Solomon Islands.104 However,

case law and literature demonstrates that many consent and approval processes

have been plagued by difficulties.105

Problems with the landowner consent provisions in the FRTU Act and the MM Act

arise in part from how these laws refer to customary rights holders. Under the

FRTU Act, the provincial executive must organise a meeting between the

applicant and the ‘customary landowners’ to discuss the disposal of their ‘timber

98 Ian Frazer, ‘The Struggle for Control of Solomon Island Forests’ (1997) 9(1) Contemporary Pacific 39, 48. For comprehensive

analysis of the history of the regulation of logging in Solomon Islands see, eg, Judith Bennett, ‘Forestry, Public Land, and the Colonial Legacy in Solomon Islands’ (1995) 7(2) Contemporary Pacific 243; Judith Bennett, Pacific Forest: A History of Resource Control and Contest in Solomon Islands, c 1800 – 1997 (Brill Academic Publishers Inc, 2000); Morgan Wairiu, ‘History of the Forestry Industry in Solomon Islands: The Case of Guadalcanal’ (2007) 42(2) Journal of Pacific History 233.

99 Tovua v Meki [1989] SBHC 3; [1988-1989] SILR 74. 100 See, eg, Wairiu, above n 98; Graham Baines, Solomon Islands is Unprepared to Manage a Minerals-Based Economy, State,

Society and Governance in Melanesia Discussion Paper 2015/6 (Australian National University, 2015) 1. 101 Tovua v Meki [1989] SBHC 3; [1988-1989] SILR 74. 102 MM Act s 21(4). This section applies to the applicant for a prospecting licence. Only the holder of a prospecting licence can

apply for a mining lease (MM Act s 30(2)). 103 A significant exception to this is Tagini’s doctoral thesis: see Phillip Iro Tagini, The Search for King Solomon’s Gold: An

Examination of the Policy and Regulatory Framework for Mining in Solomon Islands (PhD Thesis, The Australian National University, 2007). See also Joe Fardin, Mining Law and Agreement Making in Solomon Islands (Public Solicitor’s Office, Solomon Islands Government, 2011).

104 For history of the regulation of mining in Solomon Islands, see generally Tagini, above n 103, ch 2. 105 See, eg, Baines, above n 100. The saga involving Sumitomo Metal Mining Solomons Ltd obtaining approval to conduct mining

on Isabel is a key example of this. See, eg, SMM Solomon Ltd v Attorney General; Bogotu Minerls Ltd v Attorney General [2014] SBHC 91.

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rights’.106 The Act refers to ‘landowners’ and ‘persons proposing to grant timber

rights’ interchangeably, without defining either term.107 The term ‘landowner’

does not accurately describe the nature of customary land rights (see 2.3.5). In

addition, the Act’s failure to distinguish a ‘landowner’ from a ‘timber rights

holder’ implies that the terms are synonymous, which is not necessarily the

case.108 As Corrin notes, ‘[t]his has set up a serious dilemma in Solomon Islands

where the legislation may permit those with a restricted interest in land to dispose

of the most valuable fruit of the land’.109

A similar issue arises under the MM Act. That law requires a mining tenement

applicant to negotiate with the ‘landowners or any person or groups of persons

having an interest’ in the land, with a view to obtaining surface access rights.110

However, some sections of the Act refer to the applicant making a surface access

agreement with the ‘landowners’ only.111 The ambiguous and inconsistent use of

this terminology makes it unclear whose consent is legally required under the

Act.112

The implementation of the landowner consent provisions in the FRTU Act and the

MM Act is also problematic because of their inconsistency with some customary

decision-making processes.113 This issue is particularly pertinent in Rennell,

where the tenure system differs from many other places in Solomon Islands. In

accordance with the FRTU Act and the MM Act, logging and mining agreements

are often signed by a community member purporting to act on behalf of a

landowning group such as a tribe. While this may reflect the customary tenure

system in some areas, land ownership on Rennell is more individualised than

elsewhere in Solomon Islands. As Hughes and Tuhanuku have explained:

In Rennell, these [land] rights are held at the family level, grouped geographically on a tribal basis but jealously guarded at the level of the family, even on occasion

106 FRTU Act s 8(3). 107 See, eg, ss 8(3)(z), 8(3)(b). 108 Jennifer Corrin, ‘Customary Land and the Language of the Common Law’ (2008) 37 Common Law World Review 305, 320;

J C Corrin, ‘Abrogation of the Rights of Customary Land Owners by the Forest Resources and Timber Utilisation Act’ (1992) 3 Queensland University of Technology Law Journal 131, 137; Allardyce Lumber Company Ltd v Attorney General [1989] SBHC 1.

109 Corrin, ‘Customary Land and the Language of the Common Law’, above n 108, 320. For discussion of this issue, see also Price et al, above n 9, 97-98.

110 MM Act ss 21(4)(a)-(b); 32(4). 111 For example, MM Act ss 21(6)-(8), 34(1). 112 For further discussion, see Price et al, above n 9, 144-145. 113 Tagini, above n 103, 221.

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setting brother against brother. Family boundaries are well known and defended.114

Consequently, while the customary laws in other parts of Solomon Islands may

authorise certain individuals to make decisions on behalf of their tribe, on Rennell:

…[i]ndividual families can hold out against the wishes of the tribe, including the chief or chiefs. This feature of land rights has led to inter-family rows, delays in reaching decisions about adjoining land areas, and family dissatisfaction with agreements about logging and mining entered into on a ‘tribal’ basis.115

Consent for much of the logging and mining that is now occurring in West Rennell

was given by only a few of the families who own land within the relevant area,

creating conflict between local people regarding the approval of these projects.116

The prevalence of these disputes lead Hughes and Tuhanuku to contend that the

Rennellese peoples’ experience with logging and mining has been ‘unhappy and

divisive’.117

A lack of government oversight over the landowner consent processes has enabled

many of the problems referred to above to occur. In general, SIG has tended to

look after the interests of investors over those of landowners.118 Some landowners

do not learn about proposals for their land until a company representative arrives

to persuade them to sign an agreement,119 or even until the operations begin.120

This was the author’s experience, when participating in community meetings in

East Rennell in 2011 (as a lawyer for the Public Solicitor’s Office). The purpose

of those meetings was to inform the local people about an application to log within

the WH site,121 and to explain the approval process that would follow. The author

observed that many East Rennellese were not aware that an application to log their

land had been submitted.122

Even if landowners are notified of an application, they often lack the information

they require to properly assess the proposal and make an informed decision.123 In

114 Hughes and Tuhanuku, above n 47, 12. 115 Ibid. 116 Ibid 18. 117 Ibid 13. 118 See, eg, Siobhan McDonnell, Joseph Foukana and Alice Pollard, Building a Pathway for Successful Land Reform in Solomon

Islands (2015) 7, 62. 119 See, eg, Baines, above n 100, 5. 120 See, eg, Corrin, ‘Abrogation of the Rights of Customary Land Owners‘, above n 108, 136; Baines, above n 100, 11. 121 Application 101176 lodged by Joses Tahua dated 9 December 2011. This application (which was ultimately not successful)

was for a licence to extract 80% of the logs from certain forests in West and East Rennell, including the forests covering the entire western half of the World Heritage Site.

122 Price et al also note that the Public Solicitor’s Office receives frequent complaints from landowners that the provincial executive has failed to inform them that an application has been lodged: see Price et al, above n 9, 80.

123 See, eg, Tagini, above n 103, 147.

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addition, landowner agreements are often signed and negotiated by a few people

within a landowning community, without input from all people with customary

rights in the area.124 These are rarely scrutinised by the government to ensure they

have been signed by the people who have the right under custom to make

decisions with respect the land.125 This lack of government oversight makes the

consent processes highly vulnerable to exploitation.126

There are also inadequate processes in place for the resolution of disputes

concerning landowner approval for logging and mining. The FRTU Act enables a

person to appeal a determination by the provincial executive made at a timber

rights meeting to the relevant Customary Land Appeals Court.127 However, these

courts are ‘choked’ with appeals,128 and fail to resolve disputes in a timely fashion.

In addition, many people cannot commence proceedings because they are

unaware that a determination was made, or because they lack the necessary

knowledge or resources.129 The MM Act does not establish an appeal mechanism

for landowners wishing to dispute the signature of a surface access agreement.

Such claims can only be made in the High Court, making it extremely difficult for

landowners to challenge surface access agreements. Again, these issues are

reflected in the experiences of the West Rennellese to date. Hughes and Tuhanuku

have stated that on West Rennell, ‘the combination of physical remoteness, lack

of understanding of issues and possibilities, and capture of the regulators by the

loggers and miners, has deprived the people…of orthodox avenues of

complaint.’130

In practice therefore, many Solomon Islanders often have little power to prevent

logging and mining from occurring on their land, which reduces their ability to

protect WH. Legislative reform to address the issues referred to above is long

overdue. In particular, resources legislation should be amended to incorporate new

mechanisms for identifying customary landowners and resolving disputes.131

124 Price et al, above n 9, 90. 125 See, eg, McDonnell, Foukana and Pollard, above n 118, 7, 62; Price et al, above n 9, 83; Baines, above n 100, 6. 126 See, eg, Baines, above n 100, 9. 127 FRTU Act s 10. Customary Land Appeal Courts are established by the Chief Justice of the High Court under the Land and

Titles Act (Cap. 133) s 255(1). 128 Bennett, ‘Forestry, Public Land, and the Colonial Legacy in Solomon Islands’, above n 98, 261. 129 Price et al, above n 9, 119. 130 Hughes and Tuhanuku, above n 47, 19. 131 McDonnell, Foukana and Pollard, above n 118, 11.

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There is also a critical need for landowners to have greater access to information,

advice and representation concerning logging and mining proposals, to enable

them to make informed decisions about the development of their land, and to

challenge approvals that they consider are unlawful. Unless and until these

reforms occur, it is unclear whether the East Rennellese can prevent logging and

mining from occurring within the WH site in the long term.

(II) Landowners often have little capacity to object to developments on neighbouring

land

As noted in 7.3.1(A), under the Environment Act a person who may be affected

by a proposed operation can object to the grant of a development consent.132 While

this provision technically gives people some say in operations that may affect

them, this presupposes that they are aware of the development consent

application, and they have the capacity to prepare and submit an objection. The

Director of Environment is legally required to give notice of such applications to

people who may be affected,133 however in the author’s experience this does not

always happen. It is also difficult for people in rural areas to prepare written

objections, especially to counter lengthy and technical EIA reports. Thus, in

practice, people have little control over whether activities are approved on

neighbouring land. For these provisions to be effective, it is imperative that people

who may be affected by a proposed development are informed of the proposal in

a timely manner, and are assisted to navigate the EIA and to prepare and submit a

submission to the Director.

A further challenge is that attempting to restrict development on neighbouring

land may be inconsistent with custom. In most villages, decisions about the use of

land are made by those directly associated with it, and neighbours do not

interfere.134 As Allen et al have stated:

It is extremely difficult for members of one group to impose sanctions on or issue directions to members of another group.135

Thus, in practice, the East Rennellese people have little capacity to influence the

132 Environment Act 1998 ss 22(2), 24(2). 133 Environment Regulations 2008 regs 11(1), 12. 134 Baines, above n 100, 8. 135 Allen et al, above n 23, 20.

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activities occurring in West Rennell, despite their impacts on the site’s OUV.

Given the SIG’s reluctance to refuse developments supported by the landowners

(see (V) below), the West Rennellese people need to be involved with efforts to

protect the site. This includes providing them with the encouragement and

assistance they need to oppose operations that will harm the site’s OUV.

(III) The incentives for landowners to support logging and mining may outweigh

concerns for World Heritage

Many conservationists still adhere to ‘romantic notions’ of rural Solomon

Islanders as people who are satisfied with their subsistence lifestyle and who have

limited material and financial aspirations.136 In reality, many Solomon Islanders

want to participate in the cash economy,137 and view logging and mining as a

means of achieving that. The royalties and other fees that landowners receive from

resource companies make an important contribution to some local economies.

Landowners may also be persuaded to sign logging and mining contracts by a

company’s promise to fund or construct local infrastructure, which the

government is unwilling or unable to provide. For example, Rennell’s airstrip,

located in the capital Tigoa, was built by a company that conducted prospecting

for bauxite there in the 1970s.138 When prospecting began, a road was constructed

between Tigoa and Lavagu (in central Rennell).139 It was later extended to reach

Lake Tegano with funding from the European Union.140 More recently, a mining

company built a road linking the four East Rennell villages. Landowners may also

have other motivations to sign resource contracts. For example, some do so

because they feel pressured by the company or they are tricked into signing.141

To date, the East Rennellese people have not approved any logging or mining

within the WH site. While the level of their support for these activities has not

been assessed, literature suggests that they hold diverse views on this issue, which

are changing over time.

136 Simon Foale, ‘Where’s Our Development? Landowner Aspirations and Environmentalist Agendas in Western Solomon

Islands’ (2001) 2(2) Asia Pacific Journal of Anthropology 44, 49. 137 Ibid. 138 Tagini, above n 103, 61. 139 Wingham, above n 21, 29. 140 Ibid. 141 Baines, above n 100, 9.

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According to the WH nomination dossier for East Rennell, approximately 80% of

the local people supported the site’s nomination for WH listing,142 so presumably

they opposed logging and mining at that time. Since then however, the WH

program has not delivered substantial economic windfalls to the local people (see

6.3.3), and support for logging has grown. In 2011, East Rennell’s paramount

chief was reported as saying that logging will be the only option if assistance is

not provided to help the communities meet their livelihood needs.143 In the same

year, an application for a felling licence to log the western half of the WH site was

submitted by one of the chiefs of Nuipani village.144 As a lawyer for the Public

Solicitor’s Office, the author was involved with community meetings in East

Rennell to inform local people of that application, and to explain the landowner

consent process that would follow. While almost all locals who spoke at those

meetings opposed the logging proposal,145 it is unclear how widespread this

opposition was, as logging supporters may have stayed silent at the meetings or

refused to attend.

The 2011 felling licence application ultimately folded when the Rennell Bellona

provincial executive failed to arrange a ‘timber rights meeting’ between the

applicant and the landowners, despite being obliged to do so under the Act.146 The

reasons for this are unclear. At the time, the author was advised that it was because

the applicant did not pay the requisite fee. However, in its 2013 State party report

to the WH Committee, the SIG stated that the application failed due to ‘strong

opposition from the landowners’.147 Whatever the true reason, support for logging

appears to be growing again. At least two further applications for logging licences

have been submitted since that time. Although both were unsuccessful, in 2015 it

was reported that a recent logging proposal promoted by a former Member of

Parliament for the Rennell Bellona province was positively received by some

142 Wingham, above n 21, 39. 143 Environment and Conservation Division (Solomon Islands Ministry of Environment, Climate Change, Disaster Management,

and Meteorology) Lake Tegano World Heritage Site, East Rennell, Rennell-Bellona Province: A Report on Community Consultation Visit on the Status of East Rennell World Heritage Site, 5 – 12 October 2011 (SIG, 2012).

144 Application for Approval for Negotiation to Acquire Timber Rights (Form 1) filed by Joes Saukha Tahua (A101176, 9 December 2011).

145 As reported in John Marnell, ‘Concerns Raised Over East Rennell Logging Application’, Sunday Isles, 25 March 2012, 9. 146 FRTU Act s 8(1). 147 Solomon Islands Government, State Party Report on the State of Conservation of the East Rennell World Heritage Area

(Solomon Islands) (SIG, 2013).

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landowners.148

The above analysis suggests there is no clear consensus among the East

Rennellese about logging, and the level of support and opposition ebbs and flows.

As such, IUCN’s contention that ‘the community leaders and the people of East

Rennell…are opposed to logging’149 is an oversimplification of this issue. It is

also unclear whether there is any support for mining among the East Rennellese

communities and, if so, how widespread that support is.150

While economic development and WH protection are not necessarily

incompatible, logging or mining in East Rennell would almost inevitably damage

the site’s OUV (see 6.2.1). There is therefore a tension between the economic

aspirations of some East Rennellese and the conservation of WH. While this

tension exists at numerous sites around the world, it is perhaps most acutely felt

in places such as East Rennell, where there are few alternative development

opportunities (see 6.3.3). As the WH Committee and the IUCN call for logging

and mining in the WH site to be banned, the desire of the East Rennellese to

economic and social development cannot be ignored. It is not only unethical but

also unpractical to expect that all East Rennellese people will be happy to forgo

the opportunity to earn cash income from their land in order to protect WH.

Whether the East Rennellese would in practice benefit from logging or mining

within the WH site is of course debatable. The history of logging in Solomon

Islands shows that community members often receive little from the sale of their

timber rights.151 Logging companies commonly under-report their takings to

minimise royalty payments,152 and fail to deliver on promises to construct local

148 Hughes and Tuhanuku, above n 47, 12. 149 Dingwall, above n 28, 31. 150 It was recently reported in the Solomon Star that a Member of Parliament for the Rennell Bellona constituency opposes mining

within the WH site: see Aatai John, ‘No Mining at Lake Tegano’, The Solomon Star (online), 20 February 2017 <http://www.solomonstarnews.com/news/national/12281-no-mining-at-lake-tegano>. However, it is unclear whether that is because of community opposition.

151 See, eg, Frazer, above n 98, 39; Bennett, Pacific Forest, above n 98, 319-38; Pacific Horizon Consultancy Group, Solomon Islands State of Environment Report (Solomon Islands Government, 2008) 52; Debra McDougall, ‘Church, Company, Committee, Chief: Emergent Collectivities in Rural Solomon Islands’ in Mary Patterson and Martha Macintyre (eds), Managing Modernity in the Western Pacific (University of Queensland Press, 2011) 121, 139; Sue Farran, ‘Timber Extraction in Solomon Islands: Too Much, Too Fast; Too Little, Too Late’ in Emma Gilberthrope and Gavin Hilson (eds), National Resource Extraction and Indigenous Livelihoods: Development Challenges in an Era of Globalisation (Routledge, 2014) 179, 179.

152 See, eg, Daniel Gay (ed), Solomon Islands Diagnostic Trade Integration Study 2009 Report (Solomon Islands Government, 2009) 218; Sinclair Dinnen, ‘The Solomon Islands Intervention and the Instabilities of the Post-Colonial State’ (2008) 20(3) Global Change, Peace and Security (formerly Pacific Review: Peace, Security and Global Change) 338, 351.

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infrastructure.153 Royalties are frequently horded by the individual landowners

who signed the agreement with the logging company, rather than being distributed

to all community members154 or invested.155 Logging can also have negative

social consequences for communities. It can degrade water sources and destroy

gardens that local people rely upon for their livelihoods. It also commonly causes

or exacerbates land disputes,156 and contributes to problems such as the loss of

community pride and respect for leadership structures, and increased instances of

alcoholism and prostitution.157 Mining projects can also have similarly negative

consequences for local communities.158

Hughes and Tuhanuku’s report suggests that extractive industries operating in

West Rennell are following this sorry pattern.159 Despite this, some community

members still support those forms of development. A West Rennellese

community leader who consented to the logging of his land is reported to have

said that those who support WH are ‘dreamers’ while those who support logging

are ‘doers’.160

The negative consequences of extractive industries in West Rennell may make

some East Rennellese people question whether logging or mining will bring them

the economic and social development they are seeking. However, given the

difficulties landowners face when opposing resource developments, and the lack

of alternative development opportunities on the island, the threat that logging or

mining within the WH site will be approved remains.

WH protection initiatives in East Rennell must therefore be coupled with support

for alternative livelihood development. Identifying viable development options

153 See, eg, Price et al, above n 9, 191. 154 See, eg, Allen et al, above n 23, 21; Judith Bennett, Roots of Conflict in Solomon Islands - Though Much is Taken, Much

Abides: Legacies of Tradition and Colonialism, State, Society and Governance in Melanesia Discussion Paper (Australian National University, 2002) 13; Chris Brown, Regional Study: The South Pacific, Asia-Pacific Forestry Sector Outlook Study (Food and Agriculture Organisation of the United Nations, 1997) 4.

155 See, eg, Gay (ed), above n 152, 218. 156 See, eg, Allen et al, above n 23, 21; Hughes and Tuhanuku, above n 47, 8; Solomon Islands Government, above n 147, 65;

Tarcisius Tara Kabutaulaka, ‘Rumble in the Jungle: Land, Culture and (Un)sustainable Logging in Solomon Islands’ in Antony Hooper (ed), Culture and Sustainable Development in the Pacific (ANU E Press and Asia Pacific Press, 2005) 88, 92.

157 See, eg, Greenpeace Pacific, Caught Between Two Worlds: A Social Impact Study of Large and Small Scale Development in Marovo Lagoon, Solomon Islands (2001) 13, 16.

158 See, eg, Baines, above n 100; Tagini, above n 103, chs 7-8; Daniel Evans, ‘Tensions at the Gold Ridge Mine, Guadalcanal, Solomon Islands’ (2010) 25(3) Pacific Economic Bulletin 121, 129-130.

159 Hughes and Tuhanuku, above n 47, 9. 13. 160 Dingwall, above n 28, 18.

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for East Rennell will be very challenging, and indeed all such projects initiated to

date have had limited success. However, it is likely to be necessary if sufficient

landowner opposition to logging and mining within the WH site is to be

maintained in the long term. The reasons behind the failure of past livelihood

projects should be analysed to ascertain whether any lessons can be learned from

them for future initiatives (see 9.3.3(C)).

(IV) The incentives for SIG decision-makers to support logging and mining may

outweigh concerns for World Heritage

While SIG decision-makers have the power to refuse logging or mining approvals

on the grounds of their potential impact on WH (see 7.3.1(B)), many factors

influence such decisions. As discussed below, extractive industries make a major

contribution to Solomon Islands’ economy. The social and cultural factors

influencing decision-making under resource laws also cannot be ignored.

There is clearly an economic rationale behind the decision-making of SIG

officials concerning logging and mining. Logging has been a major revenue earner

for Solomon Islands since the 1980s.161 While there has been little mineral sector

development in Solomon Islands to date, the industry has accelerated rapidly over

the last few years. With tenements now covering large tracts of terrestrial and

marine areas in Solomon Islands, mining could become a significant contributor

to the State’s economy in coming years.162 The contribution of logging and mining

to Solomon Islands’ (albeit limited) economic growth creates a disincentive for

SIG officials to reign in the industries. As a conservation officer in the Ministry

of Environment commented when interviewed for this research:

It is too big an ask of the international community to [ask SIG to] ban logging [on Rennell]. Although it is destructive it is a source of revenue for government as well as the communities.163

The close connection between the SIG and these industries is also influential. It

161 See, eg, Gay (ed), above n 152, 48; Wairiu, above n 100, 243. 162 See, eg, Gay (ed), above n 152, 54; Tubagus Feridhanusetyawan and Shanaka J Peiris, Solomon Islands: Selected Issues, IMF

Country Report 11/360 (International Monetary Fund, 2011) 8, 10. 163 Interview with a conservation officer in the Ministry of Environment (Honiara, 2 August 2013).

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is well known that there is widespread corruption within the forestry industry.164

Many State officials, including politicians, have been directly involved in logging

operations, or have benefited from bribes and inducements paid by foreign

companies to influence government policy and evade regulatory requirements.165

Logging companies in Solomon Islands are renowned for utilising their

connections with the government to bend the rules in their favour. Indications are

that many mining companies are likely to operate in a similar manner.166 For

example, Baines refers to the mining approval process as being characterised by

‘confusion, political interference, weak monitoring agency capacity and uncertain

competence, all shadowed by a cloud of corruption’.167 These issues seriously

undermine the regulatory system for these industries.

The practices of many SIG officials in relation to extractive industries cannot

however be explained through economic logic alone. Geographer Matthew Allen

has explored in detail the social and cultural factors influencing the operation of

the logging industry in Solomon Islands.168 Among these factors is the ‘big-men’

style of politics and leadership prevalent in Melanesia,169 and the social norms of

reciprocity and obligation that underlie Solomon Island culture. These features

compel SIG officials to seek to access resources from industries like forestry, and

distribute them to their supporters. 170 They help explain why the logging industry

is poorly regulated and susceptible to corruption.

The implementation of Solomon Islands’ resources legislation for the protection

of WH must be considered within this context. Given the economic, social and

cultural factors that influence decision-making under these laws, the impact of a

proposed operation on heritage is at present unlikely to persuade the relevant

decision-maker to refuse development approval. This has certainly been the

experience in Rennell to date. For example, several mining developments in West

164 See, eg, Solomon Islands Office of the Auditor General, An Auditor-General’s Insights into Corruption in Solomon Islands

Government, National Parliament Paper 48 (2007) 10. 165 See, eg, Dinnen, above n 152, 351; Sinclair Dinnen, ‘State-Building in a Post-Colonial Society: The Case of Solomon Islands’

(2008) 9 Chicago Journal of International Law 51, 59; Matthew Allen, ‘The Political Economy of Logging in Solomon Islands’ in Ron Duncan (ed), The Political Economy of Economic Reform in the Pacific (Asian Development Bank, 2011) 277, 289-90.

166 See, eg, Baines, above n 100; Hughes and Tuhanuku, above n 47. 167 Baines, above n 100, 14. 168 Allen, above n 165. 169 ‘Big man’ societies are those where leaders achieve their status largely because of their ability to generate and distribute

wealth: see Allen, above n 165, 280. 170 See also Bennett, above n 151.

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Rennell have been approved despite the fact their EIAs identified the loss of East

Rennell’s OUV as a potential impact.171 In this context, the threat that SIG

decision-makers will approve developments that damage East Rennell remains.

(V) SIG decision-makers are reluctant to limit the right of landowners to develop their

land

In Solomon Islands, State law prevails to the extent of any inconsistency with

customary law.172 Therefore, the government can regulate access to land and

resources notwithstanding any customary rights. However, many Solomon

Islanders believe differently. Before Europeans arrived in their region, it was a

foreign idea to Pacific islanders that anyone other than the landowners could have

rights to the resources on or under that land.173 Despite Solomon Islands becoming

a protectorate and then an independent State, landowners commonly claim

ownership over minerals and trees pursuant to their customary laws.174 Many

consider the State has no authority to control how customary land and resources

are used.175

This viewpoint is reflected in decisions made by some SIG officials under

resources legislation. For example, in Pitanoe v Minister for Forestry,

Environment & Conservation176 Justice Kabui noted that the Commissioner for

Forests rarely refuses an application by a logging company for consent to

negotiate with the customary landowners (which is the first step of the timber

rights process - see 7.3.1(A)). His Honour commented that the approach taken by

the Commissioner reflects a belief that:

the ownership of timber rights is vested in the resource owners. They decide. The Ministry would only intervene if the provisions of the [FRTU] Act have not been complied with by the parties and authorities involved in the timber rights acquisition procedure.

171 For example, the EIA for Asia Pacific Investment and Development Ltd’s mining proposal at West Rennell identified the loss

of OUV of East Rennell as one of the main potential adverse impacts of the operation: Asia Pacific Investment Development Ltd, Rennell Island Bauxite Project, Renbel Province: Environment Impact Statement (2014) 4. Similarly, the EIA for PT Mega Bintang Borneo’s proposed mining operation in central Rennell found that the WH site is likely to be affected by the development: PT Mega Bintang Borneo Ltd, Environment Impact Statement: Central Rennell Bauxite Mining Project (2014) 68.

172 Solomon Islands Independence Order 1978, sch (‘Constitution of Solomon Islands’) sch 3 para 3. 173 Glenn Banks, ‘Mining’ in Moshe Rapaport (ed), The Pacific Islands: Environment and Society (University of Hawai’i Press,

2013) 379, 383. 174 Tagini, above n 103, 261. 175 Jan McDonald, Marine Resource Management and Conservation in Solomon Islands: Roles, Responsibilities and

Opportunities (Griffith Law School, 2010) 2. 176 [1998] SBHC 56.

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In addition, in the author’s experience, the Commissioner rarely refuses to grant

felling licences, once the timber rights process has been completed, again

reflecting a reverence for customary rights.

Similarly, the Environment Act 1998 is not universally viewed as a mechanism

for regulating extractive industries, even though one of its objects is to control

development to protect the environment.177 In a sworn statement filed in relation

to a High Court case,178 Joe Horokou (the Director of the Environment and

Conservation Division of the Ministry of Environment) stated:

the Environment Act is there to assist developers to work alongside with any development activities that require Development Consent. It is the intention of the said Act to help developers comply with the relevant provision of the Act, it is not there to stop or use a tool to stop development. Therefore, if there is a breach it will always be rectified to allow development to take place. [sic] 179

This statement is particularly telling given that the Director is the person

responsible for determining development consent applications under the Act. It

helps explain why operations on Rennell have been approved, notwithstanding

their impacts on WH.

The reluctance of SIG officials to restrict development that is supported by the

landowners is also evident from the consultation process undertaken for this

research. Interviewees were asked to comment on the WH Committee’s requests

for SIG to ban logging on Rennell. In response, several interviewees noted that it

was difficult for the SIG to comply with this request. For example, Joe Horokou

stated:

The resource is owned by the people and they make decisions about how to use it, especially the forest. While government can work with people to look after the lake [Tegano] it would be difficult to stop logging on the whole island…To me there is some contradiction between requirements of the [World Heritage] Convention and customary law.180

Another interviewee stated:

Yes, we should stop logging because as a World Heritage site, East Rennell puts us [Solomon Islands] on the map, its universal, its for the good of humanity. But the man on the ground does not see it like this.181

177 S 3(a). 178 Kolombangara Island Biodiversity Conservation Association Trust Board v Attorney General and Others (High Court of

Solomon Islands, CC 428 of 2011). 179 Sworn Statement of Joe Horokou, Director of the Environment and Conservation Division of the Ministry of Environment,

filed in High Court case CC 428 of 2011 (15 November 2010) para 8. 180 Interview with Joe Horokou, Director of the Environment and Conservation Division of the Ministry of Environment (Honiara,

15 August 2013). 181 Interview with an officer in the Ministry of Culture (Honiara, 26 July 2013).

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Other interviewees commented on the limited livelihood opportunities on Rennell,

and the need for local development. Responses included:

Protecting the site is difficult because they [the East Rennellese people] use the resources we [the government] want to conserve.182

The government has an obligation to allow people to grow and development.183 It is not practical to deny people from harvesting some of the things they require from the environment. It’s their livelihood.184 If logging were banned, it would require UNESCO to go there and provide alternative livelihood options for the East Rennellese people.185

A request to ban logging must come with a responsibility from the international community to assist with that process.186

SIG officials are therefore reluctant to restrict logging and mining projects

approved by the landowners. Of course, that does not mean that all landowners

hold substantial power with respect to the development of their land. As was

explained in (I) above, projects frequently occur without the consent of all relevant

customary rights holders. As such, when SIG decision-makers purport to be

authorising developments to give effect to the wishes of landowners, they are

often facilitating developments supported by only a few within the landowning

community. That point aside, the perception that landowners own their resources

clearly influences decision-making under resources legislation. This may be why

SIG has asserted in some of its State party reports to the WH Committee that it

lacks the power to prohibit logging and mining on Rennell.

(VI) The lack of compliance with and enforcement of resource legislation means

logging and mining in Solomon Islands is often unlawful

If resource laws are to be used to protect WH, the laws must be complied with.

Logging and mining must only occur with the required approvals, and in

compliance with the relevant laws. Decisions to refuse or revoke approvals for

developments made under those laws must be respected. The conditions of

182 Interview with an officer in the Ministry of Education, who was formerly the focal point for World Heritage within the

Solomon Islands National Commission for UNESCO (Honiara, 28 July 2013). 183 Interview with Bradley Tovosia, Minister for Environment (Honiara, 24 September 2013). 184 Interview with Joe Horokou, Director of the Environment and Conservation Division of the Ministry of Environment (Honiara,

15 August 2013). 185 Interview with an officer in the Ministry of Culture (Honiara, 26 July 2013). 186 Interview with a conservation officer in the Ministry of Environment (Honiara, 2 August 2013).

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approvals and agreements must be complied with. In Solomon Islands, this often

does not happen.

It is well recognised that logging commonly occurs outside licenced areas, in

contravention of timber rights agreements, and in breach of other requirements

under the FRTU Act.187 Literature on the implementation of the MM Act is more

limited, but it too suggests that breaches are common.188 Furthermore, many

developments occur without approval under the Environment Act.189

This lack of compliance is partly a result of the government’s failure to reform the

industries and strengthen regulation, as discussed above in (IV). It is also due to a

lack of staff and resources within the relevant Ministries, which impedes their

ability to carry out their statutory duties.190 A lack of coordination between the

relevant Ministries further hampers the effective implementation of legislation.191

There is often little incentive for SIG to enforce regulatory provisions, and it is

very difficult for landowners to seek enforcement through the court system

because of their limited access to legal services.192 In this context, compliance

with resources legislation has effectively been left to the whim of the logging and

mining companies.193 This appears to be the case on Rennell. Hughes and

Tuhanuku have found that regulation of the industries on Rennell is ‘weak and

haphazard’,194 creating a situation where ‘the commercial players have been

making their own rules and getting away with it’.195

These issues significantly impede the ability of both the SIG and landowners to

protect WH against the impacts of logging and mining. For example, the

187 See, eg Gay, above n 152, 212, 218; Allen, above n 165, 287; Price et al, above n 9, 119-20; Baines, above n 100, 2;

Cordonnery, Laurence, ‘Environmental Law Issues in the South Pacific and the Quest for Sustainable Development and Good Governance’ in Anita Jowitt and Tess Newton Cain (eds), Passage of Change: Law, Society and Governance in the Pacific (ANU Press, 2010) 233, 235; Douglas Hou, Elaine Johnson and Stephanie Price, ‘Defending the Forest in the Clouds: Public Interest Law in Solomon Islands’ (2013) 15 Asia Pacific Journal of Environmental Law 167, 170.

188 See, eg, Baines, above n 100; Hughes and Tuhanuku, above n 47. 189 Price et al, above n 9, 220. 190 See, eg, Frazer, above n 98, 47-8; Allen, above n 165, 287; Tagini, above n 103, 149; Baines, above n 100, 2. 191 Tagini, above n 103, 382. 192 For example, landowners have commenced very few cases to enforce the Environment Act 1998 against resource companies,

despite the prevalence of breaches by such companies. For discussion of one such case, see Hou, Johnson and Price, above n 187.

193 Ben Boer, ‘Solomon Islands’ in Ben Boer (ed), Environmental Law in the South Pacific: Consolidated Report of the Reviews of Environmental Law in the Cook Islands, Federated States of Micronesia, Kingdom of Tonga, Republic of the Marshall Islands and Solomon Islands (South Pacific Regional Environment Programme and IUCN Environmental Law Centre, 1996) 189, 224. Boer made this point in relation to logging companies, but it equally applies to mining companies.

194 Hughes and Tuhanuku, above n 47, 8. 195 Ibid 10.

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Commissioner for Forests could ensure that all future felling licences granted for

West Rennell are subject to biosecurity conditions, but unless monitoring and

enforcement improves such conditions may not be complied with. Similarly,

landowners could sign a timber rights agreement on the condition that specified

particularly sensitive areas remained unlogged. However, if the company

breached the condition, it is likely to be difficult for the landowners to enforce it.

Provincial ordinances also suffer from a lack of compliance. As previously noted,

resource companies require a licence under the relevant provincial business

licence ordinance. However, they frequently operate without licences, particularly

if their development has been approved under national law and by the

landowners.196 This effectively negates the power of provincial governments to

regulate extractive industries. Often, the only impact of a provincial government’s

refusal to approve an operation is that it misses out on receiving the licence fee.

The importance of these fees to the provincial government’s income stream

creates an incentive for them to approve developments.197 Therefore, although the

nomination dossier for East Rennell stated that Rennell’s business licence

ordinance makes it difficult for operations that could impact the site to become

established,198 in practice the Rennell Bellona provincial government’s power to

protect the site is more limited. If provincial governments are to play a significant

role in the protection of WH, among other things compliance with and

enforcement of their ordinances must be improved.

This analysis has shown that both landowners and the SIG have powers that could be

utilised to protect WH against the impacts of extractive industries. However, several legal

and practical issues impede the exercise of these powers. Steps could be taken to mitigate

some of these issues, such as addressing the inadequacies in resources legislation and

improving monitoring and enforcement. However, others are deeply rooted in Solomon

Islander culture, such as peoples’ reverence for customary rights and the social factors

influencing SIG decision-making under resources legislation. Given this, it appears

unlikely that SIG will comply with the WH Committee’s request that logging and mining

196 Price et al, above n 9, 23. 197 Ibid. 198 Elspeth J Wingham, Resource Management Objectives and Guidelines for East Rennell, Solomon Islands (May 1998),

attached as attachment 1 to Elspeth J Wingham, Nomination of East Rennell, Solomon Islands by the Government of Solomon Islands for Inclusion in the World Heritage List Natural Sites (1997) 6.

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on the island be banned, at least in the short term. As such, it is critical that the landowners

of East and West Rennell are encouraged and supported to oppose such developments.

This will require the provision of alternative livelihood options, and assistance to enable

them to exercise their rights under resources legislation.

7.3.3 Protecting World Heritage against the impacts of clearing for agriculture

A potential threat to East Rennell’s OUV that the Committee and the IUCN have not yet

raised is the clearing of forest for slash and burn agriculture. A 2016 report found that the

largest cleared patches of forest on the island were caused by this practice, not by logging

or mining199 (see 6.2.1). Like logging, clearing for agriculture is regulated under the

FRTU Act.

If any person (including a landowner) wishes to clear logs from customary land for

agriculture, the timber rights process (summarised in 7.3.1(A)) must be completed, and

the person must obtain a licence under the FRTU Act.200 Thus, the SIG can regulate

clearing for agriculture in order to protect WH, just as it can do so for commercial logging

(see 7.3.1(B)). In the author’s experience however, the SIG rarely, if ever, restricts the

clearing of land by landowners for small-scale agriculture. As such, it is unlikely that the

SIG will prevent East Rennellese landowners from clearing their own land to grow crops,

particularly given the contribution agriculture makes to their livelihoods.

None of the state of conservation assessments of East Rennell have considered the

impacts of agriculture on the site’s OUV. Future research should assess the effect of this

activity and propose measures to minimise these impacts. Measures may include, for

example, encouraging landowners to avoid clearing particularly environmentally

sensitive areas.

199 International Centre on Space Technologies for Natural and Cultural Heritage, Report of the Technical Consultation Meeting

on East Rennell World Heritage Site in Danger, Sanya, Hainan Province, China, 1 – 2 February 2016 (2016) 20-21. 200 FRTU Act ss 4-5. This was confirmed by the High Court in Forest v Ali [1994] SBHC 54. For discussion, see Price et al, above

n 9, 98.

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7.4 Protecting World Heritage through biosecurity laws

Invasive species, particularly the black ship rat (Rattus rattus) and the giant African snail

(Achatina spp.) are a threat to the OUV of East Rennell (see 6.2.3). The Biosecurity Act

2013 could be used to help address these threats, and to reduce the likelihood of further

invasive species being introduced to Rennell island.

The Act aims to prevent the introduction and spread of pests and diseases, and eradicate

those that have already been introduced.201 It provides the SIG with several legal

mechanisms that could help prevent the introduction of invasive species to the islands.

For example, the Act requires the master of every incoming vessel to take steps to prevent

any animals on board the vessel from coming to shore.202 Incoming vessels have to be

taken to a biosecurity port holding area so that they can be searched.203 No crew or cargo

from the vessel can be landed unless and until landing clearance is granted by a SIG

biosecurity officer.204 Used logging vehicles and machinery will only obtain such

clearance if they are free of soil, pests, seeds and other plant and animal matter.205 It is an

offence to fail to comply with these requirements. Persons found guilty of non-

compliance can be subjected to fines and/or imprisonment.206 If these requirements are

strictly enforced, they could reduce the risk of further invasive species being introduced

to Rennell.

The Act also gives the Minister for Agriculture the power to take various steps to control

the spread of invasive species in an area, which could help address the threats posed to

East Rennell by ship rats and giant snails. For example, the Minister could declare Rennell

or part of it as a biosecurity controlled area,207 which would then allow the Director to

require that measures be taken within that area to control the spread of pests and diseases

(such as baiting).208 Inquiries made by the author to the Ministry of Agriculture suggest

that to date no such steps have been taken to address the threats posed by invasive species

to East Rennell.

201 Biosecurity Act 2013 s 6. 202 Ibid s 21(1). 203 Ibid s 15(1); Biosecurity Regulations 2015 reg 4. There are currently biosecurity port holding areas in Honiara and Noro (in

Western Province). 204 Biosecurity Act 2013 s 15(3). 205 Biosecurity Regulations 2015 reg 36. 206 Biosecurity Act 2013 sch. 207 Ibid s 62. 208 Ibid s 63.

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The Biosecurity Act is a significant addition to Solomon Islands’ legislative framework

for WH protection. However, as the Act only came into force recently, it remains to be

seen if and how it will be implemented. The SIG will require substantial resources to set

up the administrative structures needed to implement the Act. Furthermore, enforcing the

legislation, particularly in a remote place such as Rennell, will no doubt be a challenge.

7.5 Conclusion

The outstanding natural environment of East Rennell is under threat from the exploitation

of natural resources, which could in time lead to the site being delisted. Despite repeated

calls from the WH Committee, to date the SIG has done little to protect the site from the

impacts of over-harvesting, logging and mining, and invasive species. Based on relevant

legislative provisions and empirical research, this chapter provided new insights into the

scope for these threats to be dealt with under existing laws, and the issues influencing the

implementation of those laws in practice.

To date, laws restricting the taking of species such as beche de mer, trochus and coconut

crabs have not been successful in ensuring that harvesting levels at East Rennell are

sustainable. Actions that could improve compliance with laws regulating the harvesting

of such species include:

ensuring the penalties for breaches are sufficient to provide an incentive for

compliance;

creating consolidated versions of the relevant legislation. In the past, some laws

have been amended numerous times, making it difficult to determine their current

status;

running education campaigns to raise peoples’ awareness of the restrictions,

including translating the laws into local languages; and

providing the relevant Ministries with more staff, equipment and financial

resources to enhance their ability to monitor and enforce the laws.

However, even if those actions were implemented significant challenges would remain.

The lack of relevance of State laws to many Solomon Islanders and the widespread belief

in the pre-eminence of customary harvesting rights will continue to impede efforts to

utilise such laws. The PA Act is an alternative approach to regulating the taking of species,

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which could prove more effective at East Rennell (see chapter 8).

State law gives both landowners and SIG officials a role in regulating logging and mining

on customary land. In theory, these activities cannot occur (except in limited

circumstances) without the consent of the landowners. However, in practice the

landowner consent provisions of resource laws are often manipulated by powerful

individuals within a landowning group working in cohorts with resource companies to

reap the benefits of land development. Reform of resource legislation is needed to

incorporate new models for identifying customary landowners and resolving disputes,

and new legal arrangements for dealings in customary land. This would assist the

landowners of East Rennell who oppose logging and mining to protect the WH site.

SIG officials already have the power under existing legislation to refuse proposals for

logging and mining if they are likely to have an unacceptable impact on WH. Existing

operations could also be halted if the operators were found to be in breach of any relevant

laws or conditions. The SIG’s failure to exercise these powers to protect East Rennell can

be explained by the economic, social and other factors that influence its regulation (or

lack thereof) of extractive industries, and the reluctance of SIG officials to restrict the

right of landowners to develop their land. These issues are likely to be behind the

contention contained in some of SIG’s State party reports that the government lacks the

power to halt logging and mining on customary land.

Unless the SIG fundamentally changes its approach to the regulation of extractive

industries, the WH Committee’s request for logging and mining to be banned on Rennell

is likely to continue to fall upon deaf ears. The significant gulf between the Committee’s

position and that of the SIG is reflected in the following statement made by Malchoir

Mataki (Permanent Secretary of the Ministry of Environment) when asked to comment

on the Committee’s request:

They [the Committee] are making that suggestion without any clue as to how things operate in this country.

This suggests that at present the most effective approach to protecting East Rennell is to

support the site’s landowners to continue to object to these operations. This must include:

ensuring that they are informed of any extractive industry proposals that may

affect their land;

improving their access to services to help them exercise their rights under

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resources legislation;

providing them with support for alternative livelihood developments to reduce the

incentive to support logging and mining; and

providing them with assistance to apply for East Rennell to be declared a protected

area under the PA Act. This would make logging and mining within the WH site

unlawful.

Furthermore, given that the East Rennellese have little power to regulate operations in

West Rennell, the West Rennellese should also be encouraged and supported to oppose

damaging extractive industry proposals.

Addressing the threat posed by invasive species is a major challenge on Rennell.

Approvals for extractive industries granted under the FRTU Act, the MM Act and the

Environment Act could be imposed subject to biosecurity conditions, but ensuring

compliance will be difficult. The Biosecurity Act provides a range of regulatory

mechanisms for controlling invasive species. However, as the Act is relatively new, it is

not yet clear whether it will be implemented and enforced at Rennell.

The next chapter explores the opportunities and challenges associated with protecting

WH under protected area laws.

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Chapter 8: The protection of Solomon Islands’ World Heritage under protected area laws

8.1 Introduction

Natural World Heritage (WH) sites are commonly protected under legislation that allows

sites to be declared ‘protected areas’.1 Laws of this type generally involve the delineation

of a site with fixed boundaries, its formal recognition by the State, and the imposition of

rules that apply within that area. The WH Committee has repeatedly called upon Solomon

Islands to protect East Rennell through this type of legislation,2 but this has not yet

happened.3 Despite these calls, the scope for protected area laws to contribute to WH

protection in Solomon Islands has not yet been comprehensively analysed. This chapter

therefore fills a critical gap in the literature, by exploring the opportunities and challenges

associated with the use of this legislation to protect WH.

As there is very little secondary literature concerning Solomon Islands’ protected area

laws, the chapter is principally based on the relevant legislation and empirical work

undertaken by the author. This work included contributing to a project designed to

facilitate the declaration of East Rennell as a protected area (explained in 1.4).

The chapter begins with an overview of the key laws that allow for the establishment of

protected areas in Solomon Islands (0). These laws can be grouped into two broad

categories, which reflect the paradigm shift that has occurred in international law and

policy concerning conservation (explained in chapter 4):

laws that reflect the ‘fortress’ approach to heritage protection, including the

1 UNESCO / ICCROM / ICOMOS / IUCN, Managing Natural World Heritage, World Heritage Resource Manual (UNESCO,

2012) 36. IUCN defines a ‘protected area’ as ‘a clearly defined geographical space recognized, dedicated and managed, through legal and other effective means, to achieve the long-term conservation of nature with associated ecosystem services and cultural values’: Nigel Dudley (ed), Guidelines for Applying Protected Area Management Categories (IUCN, 2008) 8. It is acknowledged that the application of this definition can be problematic in the Pacific, because of the requirement that nature conservation be the primary objective: see Hugh Govan and Stacy Jupiter, ‘Can the IUCN 2008 Protected Areas Management Categories Support Pacific Island Approaches to Conservation?’ (2013) 19(1) Parks 73. However, for the purposes of the present research, all areas established under Solomon Islands law to assist with conservation are considered to be ‘protected areas’, even if they do not strictly meet the IUCN definition.

2 WHC Res 37 COM 7B.14, WHC 37th sess, UN Doc WHC-13/37.COM/20 (5 July 2013) 68, 68; WHC Res 38 COM 7A.29, WHC 38th sess, UN Doc WHC-14/38.COM/16 (7 July 2014) 39, 40.

3 There have been incorrect reports about the status of the protection of the East Rennell under State law. For example, the Statement of Outstanding Universal Value for East Rennell, says that the site is protected under the Protected Areas Act 2010, but the Act requires a provincial ordinance and local regulations and by laws to make it effective: see Adoption of Retrospective Statements of Outstanding Universal Value, WHC 36th sess, UN Doc WHC-12/36.COM/8E (15 June 2012) 55-6; WHC Res 36 COM 8E, WHC 36th sess, UN Doc WHC-12/36.COM/19 (June-July 2012) 225. Both of these contentions are incorrect.

248

National Parks Act (Cap. 149) and the Forest Resources and Timber Utilisation

Act (Cap. 40) (the FRTU Act); and

more recent laws that reflect the modern approach to heritage protection,

including the Protected Areas Act 2010 (the PA Act), the Fisheries Management

Act 2015 and some provincial ordinances.

The chapter then analyses:

the scope for the declaration of WH sites as protected areas (8.3);

landowner involvement in the declaration of protected areas (8.4);

the ownership of protected areas (8.5);

the protection of WH sites through the rules of protected areas (8.6); and

protected area governance and the enforcement of the rules of protected areas

(8.7).

Sections 8.4 – 8.7 of this chapter focus on the PA Act and the Protected Area Regulations

2012 (the PA Regulations) for two reasons. Firstly, there is much greater scope for the

protection of WH sites under the PA Act than Solomon Islands’ other protected area laws

(see 8.3). Secondly, the WH Committee has called upon Solomon Islands to declare East

Rennell as a protected area under that Act,4 and (as explained in 8.2.2(A)) some steps

have been taken towards such a declaration. However, observations about other laws have

been included to highlight how they differ from the PA Act, and to explain why the latter

is a more appropriate avenue for the protection of WH. The chapter demonstrates that the

PA Act could help address some of the threats to East Rennell, through the rules imposed

under the PA Regulations and the site’s management plan. However, significant legal and

practical challenges are likely to be encountered when implementing the law. These relate

to issues such as obtaining landowner consent, the relationship between the management

plan and customary laws, and local governance.

4 WHC Res 37 COM 7B.14, WHC 37th sess, UN Doc WHC-13/37.COM/20 (5 July 2013) 68, 68; WHC Res 38 COM 7A.29,

WHC 38th sess, UN Doc WHC-14/38.COM/16 (7 July 2014) 39, 40.

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8.2 Overview of Solomon Islands’ protected area laws

Protected areas can be established independent of any State law. Indeed, Pacific Islanders

have in effect been creating protected areas for thousands of years, through the

implementation of their land tenure systems and traditional practices.5 More recently,

Pacific Islanders have set up protected areas, some of which are subject to management

plans and conservation agreements, but which are not recognised under any legislation.

For example, a marine protected area (MPA) has been established around Tetepare island,

in the Western Province of Solomon Islands6 (see Figure 2). Tetepare is the largest

uninhabited island in the southern Pacific Ocean,7 and is one of the most successful

examples of conservation in Solomon Islands. Although the MPA is not recognised under

any State law, it has enjoyed some success because of (among other things) the dedication

of the area’s landowners, the long-term involvement of conservationists, and the

establishment of a modest but fruitful tourism initiative.8 Usually however, as was noted

in 2.4.2, some form of State law will be required to protect a WH site against all the

threats that it faces. Protected area legislation can potentially contribute to this. In

Solomon Islands, some laws that facilitate the establishment of protected areas are

consistent with the ‘fortress’ approach to conservation (see 8.2.1), while others reflect the

more modern approach (see 8.2.2).

8.2.1 Protected area laws based on the fortress approach to conservation

The National Parks Act (Cap. 149) and the FRTU Act (Cap. 40) allow for the creation of

various types of protected areas. Under the National Parks Act, the responsible Minister9

can declare any land to be a national park.10 The FRTU Act empowers the responsible

Minister11 to:

declare a State forest over any land owned or leased by the government;12

declare a forest reserve over any area of forest or other vegetation within a rainfall

5 L M Scherl and A J O’Keefe, Capacity Development for Protected and Other Conserved Areas in the Pacific Islands Region:

Strategy and Action Framework 2015-2020 (IUCN, 2016) 1. 6 John L Read, David Argument and Katherine E Moseby, ‘Initial Conservation Outcomes of the Tetepare Island Protected

Area’ 2010 (16) Conservation Biology 173. 7 Ibid 173. 8 See generally John L Read, The Last Wild Island: Saving Tetepare (Page Digital Publishing Group, 2011). 9 Currently the Minister of Environment, Climate Change, Disaster Management, and Meteorology. 10 National Parks Act (Cap. 149) s 3(1). 11 Currently the Minister of Forestry. 12 FRTU Act s 20(1)

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catchment area, if necessary for the preservation of water resources;13 and

make regulations that declare any State land or customary land to be a sanctuary

for the purpose of conserving flora and fauna.14

As explained further in 8.6, it is unlawful to do certain activities within protected areas

established under these laws.15

Under these Acts, the responsible Minister determines whether the land becomes a

protected area, which can happen without the consent of the landowners. These Acts do

not require or encourage landowners to be involved in the management of the area, nor

do they establish any framework that could facilitate their involvement. They are

therefore consistent with the ‘fortress’ approach to conservation, under which key

decisions regarding the acquisition, establishment and management of the protected areas

are made by the State.16

To date, the laws referred to above have not substantially contributed to heritage

conservation in Solomon Islands. Queen Elizabeth National Park in Honiara is the only

place declared under the National Parks Act. The author has observed that the park is

highly degraded, affected by urban encroachment, and subject to little management by

the SIG. Few State forests, forest reserves and conservation sanctuaries have been

established under the FRTU Act, and it is unlikely that they are being actively managed.17

The ineffectiveness of these laws is likely to be attributable to a lack of political will, a

lack of awareness and understanding of the laws among relevant Ministry staff, and the

limited financial and human resources available to enforce the protected area rules.

8.2.2 Protected areas laws based on the modern approach to conservation

This section provides an overview of the PA Act 2010, the Fisheries Management Act

2015 and some provincial ordinances. The process for, and the implications of,

establishing protected areas under these laws is analysed further in sections 8.3 - 8.7

below.

13 Ibid s 24. 14 Ibid s 44(1)(s). 15 National Parks Act (Cap. 149) ss 5, 8-10; FRTU Act s 22, 27, 44(1)(s). 16 Barbara Lausche, Guidelines for Protected Area Legislation (IUCN, 2011) 75. 17 Stephanie Price et al, Environmental Law in Solomon Islands (Public Solicitor’s Office, Solomon Islands Government, 2015)

282-283.

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(A) The Protected Areas Act 2010

The PA Act is a relatively recent and progressive law that could be implemented at WH

sites in Solomon Islands.18 The Act empowers the responsible Minister19 to declare any

area of land or sea to be protected, if certain requirements are met.20 An area declared

under the PA Act will be referred to in this chapter as a ‘Protected Area’. The lowercase

version of the term (‘protected area’) is used in this chapter to describe all forms of

protected areas that may be established under State law.

The PA Act and the PA Regulations prescribe several requirements that must be satisfied

before a Protected Area can be declared. Except in limited circumstances, a Protected

Area cannot be established unless an application for the declaration is made to the

Director of the Environment and Conservation Division of the Ministry of Environment.21

Importantly, an application can only be made by the site’s owners or a non-government

organisation managing the area.22 When the Director receives an application, he or she

must assess it and make a recommendation to the Minister.23 The Minister can only make

the declaration if he or she is satisfied that the people with rights and interests in the

proposed Protected Area consent to the declaration.24 Therefore, unlike the laws based on

the fortress approach to conservation, the PA Act makes the consent of local people a

prerequisite to the establishment of a Protected Area (discussed further at 8.4).

A Protected Area application must include (among other things) a management plan that

complies with the requirements of the PA Regulations.25 This plan is a crucial document.

It not only sets out management measures relating to matters such as research, training,

public awareness and monitoring,26 it also contains rules regulating the use of the site,

which may be legally binding. As will be explained, subject to the requirements of the

Regulations, local people can dictate the content of the plan (see 8.6).

18 See generally Price et al, above n 17, ch 9. 19 Currently the Minister of Environment, Climate Change, Disaster Management, and Meteorology. 20 PA Act s 10(1). 21 PA Act s 10(4). An application for a declaration is however not required in two circumstances. Firstly, if the Director on his

or her own initiative decides to make a recommendation to the Minister that the site be declared: ss 10(2)-(3). Secondly, if the site has already been declared a protected area under a forestry or fisheries law, and the Minister responsible for fisheries or forestry (whichever is relevant) recommends that the site be declared: PA Act s 11(2).

22 Ibid s 10(4). 23 Ibid s 10(1). 24 Ibid s 10(7)(c). 25 Ibid s 10(7)(d). 26 PA Regulations reg 23.

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Once a Protected Area is declared, the national Protected Areas Advisory Committee

(PAAC) will appoint a management committee for the site.27 The PAAC is established

under the PA Act and comprises persons appointed by the Minister for Environment.28

The Minister could appoint representatives of customary landowning groups to the

PAAC, but he or she is not required to do so.

The management committee for a Protected Area is responsible for overseeing the

implementation and periodic review of the site’s management plan,29 and is given a range

of powers to enable it to do this.30 It also has the power to regulate the activities that are

carried out in the Protected Area, by authorising certain actions that would otherwise be

prohibited under the PA Regulations31 (see 8.6). Membership of the committee is open to

anyone,32 so (subject to the PAAC’s approval) it could be solely or partly comprised of

local community members. If certain requirements are met, an existing local governance

body such as a Council of Chiefs can be adopted as the management committee.33 One of

the committee’s functions is to appoint rangers, who are given various powers related to

monitoring and enforcing the Protected Area’s rules.34 Hence, unlike the laws based on

the fortress approach to conservation, the PA Act facilitates the involvement of local

people in the management of the Protected Area (discussed at 8.7).

It remains to be seen whether and how the PA Act will be implemented and enforced in a

timely manner. No site has been declared under the Act yet.35 The limited financial and

human resources within the Ministry of Environment are likely to have contributed to the

lack of implementation to date.36 Indeed, the PAAC was only established by the Minister

in 2015, three years after the Act commenced. Therefore, even if the East Rennellese

people ultimately decide to submit an application under the Act, the government’s lack

27 PA Act s 12(1). 28 Ibid s 4. 29 Ibid s 12(3). The Act also says that the management committee is to develop the management plan: s 12(3)(a). However, it is

unclear how this provision would operate in practice given that the management plan must accompany the application for the declaration of the site as a Protected Area, and the committee is only appointed after the Protected Area has been declared.

30 PA Regulations reg 29(1). 31 Ibid regs 62(1)(a), 63(1), 64(2)(c). 32 PA Act s 12(1)-(2). 33 PA Regulations reg 28(1). 34 Ibid reg 65(1). 35 In October 2016, the Arnavon Community Marine Conservation Area lodged an application to declare the Arnavons

Community Marine Park a Protected Area. However, as of March 2017 the declaration had not been made. Inquires made by the author to the Ministry of Environment suggest that this is became some people with rights and interests in the area (or people purporting to have such rights and interests) objected to the declaration.

36 Solomon Islands Government, Action Plan for Implementing the Convention on Biological Diversity’s Programme of Work on Protected Areas 2012 – 2020 (2012) 8.

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of resources may impede the recognition of East Rennell as a Protected Area.

Some work has been done towards preparing a Protected Area application for East

Rennell. As explained in 1.4, in 2013, the author was involved with a project being

undertaken by Live and Learn Environmental Education (LLEE) designed to facilitate the

declaration of the site as a Protected Area. Among other things, the author ran meetings

in the East Rennell communities to discuss the application process, and the implications

of a declaration (see Figure 18). As part of the same project, an Australian consultant

prepared a draft management plan for the site (referred to here as the ‘2013 draft

management plan’),37 which if finalised could have formed part of a PA Act application.

However, the East Rennellese have not yet decided whether to apply, and the management

plan remains in draft. Thus, it is uncertain whether East Rennell will become a Protected

Area.

Figure 18: A community meeting in Hutuna village in September 2013 to discuss the potential for East Rennell to be protected under the Protected Areas Act 2010 (Stephanie Price, 2013)

(B) The Fisheries Management Act 2015

The Fisheries Management Act provides for the declaration of Marine Protected Areas

and Marine Managed Areas38 (referred to here collectively as ‘Fisheries MPAs’) at the

37 Anna Price, (Draft) Management Plan – East Rennell, Solomon Islands (2014). See also Live and Learn Environmental

Education, Draft Management Plan – A Summary for East Rennell Communities (2014). 38 The main difference between a Marine Protected Area and a Marine Managed Area is that the latter is managed to allow for

the harvesting of marine resources: Fisheries Management Act 2015 s 2(1).

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national and community level. National Fisheries MPAs can be established by the

Minister for Fisheries, following an application to the Director of Fisheries.39 If any part

of a proposed national Fisheries MPA includes an area where there are customary rights,

the agreement of the customary rights holders is required before the area can be

declared.40 A community Fisheries MPA can be established through a community

fisheries management plan prepared for a local area.41 These plans (and therefore the

establishment of community Fisheries MPAs) require the approval of the Director of

Fisheries, the relevant provincial executive and a management committee representing

the customary rights holders.42 Therefore, the consent of customary rights holders is

required to establish a Fisheries MPA.

The Fisheries Management Act contains little detail about the establishment, management

and enforcement of Fisheries MPAs, and no regulations prescribing the details of these

processes have been made yet.43 Therefore, it is not yet clear how these provisions will

operate in practice. For this reason, and because the scope for the protection of WH sites

under this law is limited (see 8.3), the Fisheries Management Act is not analysed in detail

in this chapter.

(C) Provincial ordinances

Some provinces have ordinances that allow for the establishment of protected areas. For

example, the Isabel Province Resource Management and Environmental Protection

Ordinance 2005 authorises the Isabel provincial executive to make ‘resource

management orders’ over areas of customary land.44 The Choiseul Province Resource

Management Ordinance 1997 and the Western Province Resource Management

Ordinance 1994 give the provincial executives of these provinces the power to make

similar orders, which are referred to as ‘resource orders’.45 An application for such an

order can only be made by the people who, under custom, have the right to make decisions

39 Fisheries Management Act 2015 s 19(1). 40 Ibid s 19(4). 41 Ibid s 18, sch 2 (cl 11). 42 Ibid ss 17(1)-(2), 18(5). 43 The Fisheries Management Regulations 2017 do not contain provisions concerning Fisheries MPAs. Inquiries with the

Ministry of Fisheries suggest that Regulations prescribing matters concerning inshore fisheries will be gazetted in late 2017. 44 Isabel Province Resource Management and Environmental Protection Ordinance 2005 cl 19(1)-(2). Note however that this

ordinance has not yet been gazetted, and is therefore not in force. 45 Choiseul Province Resource Management Ordinance 1997 cl 12(1)-(2); Western Province Resource Management Ordinance

1994 cl 12(1)-(2).

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over the land with respect to land and resources46 (see 8.4). The order will contain rules

that regulate the activities that may be carried out in the area47 (see 8.6). In this chapter,

‘resource management orders’ and ‘resource orders’ are collectively referred to as

‘resource orders’.

No such ordinance exists for the province of Rennell and Bellona. In 2009, the draft Lake

Tegano Natural Heritage Park Ordinance was prepared, which provided for the creation

of a protected area at the WH site. However, the draft ordinance was never passed by the

Rennell and Bellona provincial assembly. While the WH Committee has called upon

Solomon Islands to implement the ordinance,48 the reports of its deliberations contain no

discussion about if and how this law would contribute to the protection of the site.

Therefore, it is unclear whether the Committee has turned its mind to this issue. In any

event, in the author’s view, the ordinance is unlikely to be passed, at least not in the short-

term and not in its current form. One reason for this is that the enactment of the PA Act

reduced the impetus for provincial governments to develop protected area ordinances. In

addition, such ordinances have rarely been implemented successfully,49 and provincial

governments face significant resource constraints. Nevertheless, this chapter contains

some analysis of the draft ordinance, to demonstrate its potential and limitations. As will

be explained, there are several issues with the draft ordinance, which should be addressed

before it is passed.

8.3 The scope for the declaration of World Heritage Sites as protected

areas under Solomon Islands’ laws

There is substantial scope for the declaration of WH sites as Protected Areas under the

PA Act. Under that law, a site can only be declared as a Protected Area if it meets one or

more of the significance criterion prescribed under the Act.50 However, all sites meriting

protection under the World Heritage Convention51 (the Convention) are deemed to meet

46 Isabel Province Resource Management and Environmental Protection Ordinance 2005 cls 19(3)(c), 20; Choiseul Province

Resource Management Ordinance 1997 cls 12(3)(c), 13; Western Province Resource Management Ordinance 1994 cls 12(3)(c), 13.

47 Isabel Province Resource Management and Environmental Protection Ordinance 2005 cl 20(2), sch 3; Choiseul Province Resource Management Ordinance 1997 cl 13(2), sch 3; Western Province Resource Management Ordinance 1994 cl 13(2), sch 3.

48 WHC Res 37 COM 7B.14, WHC 37th sess, UN Doc WHC-13/37.COM/20 (5 July 2013) 68, 69. 49 Price et al, above n 17; 284-289. 50 PA Act s 10(1). 51 Convention Concerning the Protection of the World Cultural and Natural Heritage, opened for signature 16 November 1972,

1037 UNTS 151 (entered into force 17 December 1975).

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this requirement.52 Consequently, subject to the other requirements in the Act being met,

all WH sites could become Protected Areas.53 As a Protected Area can be declared over

an area of land or sea,54 the WH could comprise terrestrial and/or marine areas.

Furthermore, as explained below, the declared Protected Area could be a natural or

cultural WH site.

The objects of the PA Act55 suggest that the law is primarily concerned with the protection

of biodiversity, thus natural heritage sites clearly fall within its ambit. However, at least

some cultural heritage sites could also be declared as Protected Areas. This is evident

from the PA Regulations, under which Protected Areas must be assigned to a class.56 One

class of Protected Areas is called ‘natural monuments’, and is defined to include

‘landscape[s] or seascape[s] created by the interaction (through traditional practices)

between humans and nature over time.’57 The language used to describe ‘natural

monuments’ mirrors the definition of ‘cultural landscapes’ in the Operational Guidelines

for the Implementation of the World Heritage Convention (the ‘Operational

Guidelines’)58 demonstrating an intention that the Act be used to protect that form of site.

Protected areas declared under the Fisheries Management Act can only apply to ‘fisheries

waters’ as defined in the Act,59 and are thus confined to marine sites. Under the

Operational Guidelines, the boundaries of a WH site should be sufficient to encompass

all elements that give the site outstanding universal value (OUV).60 Consequently, it is

likely that any WH site that includes a marine area will also include some terrestrial areas.

Indeed, East Rennell and the two sites on Solomon Islands’ Tentative List comprise both

marine and terrestrial areas.61 The usefulness of the Fisheries Management Act for the

protection of WH is therefore limited.

52 PA Act s 10(1)(c). 53 The PA Regulations state that a World Heritage site shall be declared as a protected area: reg 10. However, this provision does

not override the other requirements that must be satisfied before a site can be declared as a Protected Area. Therefore, those other requirements must still be satisfied before a WH site can become a Protected Area.

54 PA Act s 10(1). 55 Ibid s 3. 56 PA Regulations reg 4(1). 57 Ibid reg 7(1). 58 UNESCO, Operational Guidelines for the Implementation of the World Heritage Convention, UN Doc WHC.156701 (26

October 2016) para 47, annex 3. See 3.3.1 for discussion of the recognition of cultural landscapes in the WH Convention regime.

59 Fisheries Management Act 2015 s 2(1). 60 UNESCO, Operational Guidelines for the Implementation of the World Heritage Convention, UN Doc WHC.16/01 (26

October 2016) paras 99-102. 61 The East Rennell WH site encompasses the southern third of the island of Rennell and the area stretching 3 nm into the sea.

The Marovo-Tetepare complex encompasses more than 1 600sqkm of terrestrial and marine ecosystems. The site referred to as ‘Tropical Rainforest Heritage of Solomon Islands’ is a serial property comprising four rainforest ecosystems on different islands.

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A protected area provincial ordinance could apply to natural and/or cultural WH sites,

depending on its terms. For example, the purpose of a resource order made under the

Choiseul Province Resource Management Ordinance 1997 or the Western Province

Resource Management Ordinance 1994 must be the protection of marine, forest and/or

wildlife resources.62 Therefore, these ordinances could apply to both terrestrial and

marine WH sites, but are unlikely to be suitable for the protection of cultural sites. In

contrast, both natural and cultural sites could be protected under the more recent Isabel

Province Resource Management and Environmental Protection Ordinance 2005, which

allows for the establishment of resource orders to protect ecosystems; marine, forest

and/or wildlife resources; or areas for spiritual or custom purposes.63 As noted in 8.2.2(C),

the Rennell and Bellona province does not have a protected area ordinance.

The scope for WH sites to become protected areas under the laws based on the fortress

approach is limited. The protected area provisions of the FRTU Act and the National

Parks Act are designed to protect the natural environment of terrestrial areas,64 so would

not be useful for the protection of marine heritage. These laws also contain no reference

to cultural heritage values, and therefore they are unlikely to effectively protect a cultural

site.

8.4 Landowner involvement in the declaration of protected areas

As noted above, under protected area laws based on the fortress approach, the relevant

Minister can unilaterally declare a site to be protected. In contrast, the declaration of a

Protected Area under the PA Act requires the consent of the ‘people with rights and

interests in the area’.65 For convenience, in this chapter these people are referred to

collectively as ‘Landowners’. However, it is acknowledged that this term over-simplifies

the multi-layered nature of customary tenure systems (see 2.3.5).

62 Choiseul Province Resource Management Ordinance 1997 cl 12(2); Western Province Resource Management Ordinance

1994 cl 15(1). 63 Isabel Province Resource Management and Environmental Protection Ordinance 2005 cl 19(2). 64 The term ‘land’ is not defined in the National Parks Act (Cap. 149). However, pursuant to the Interpretation and General

Provisions Act (Cap. 85) land includes land covered by water. Therefore, arguably a national park could be declared over a marine area. However, the rule provisions of the National Parks Act regulate activities on terrestrial land, such as the taking of vegetation and the lighting of fires: s 10. This demonstrates an intention that the Act be used to protect sites that are at least predominantly terrestrial.

65 PA Act s 10(7)(c).

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If local people are not involved in the declaration and design of a protected area, they are

less likely to be aware of, understand and respect its rules. This may contribute to the

protected area law being ineffective (see 8.6). The establishment of a protected area in

this manner could also infringe their rights, particularly if it involved the compulsory

acquisition of land (see 8.5). The Landowner consent provisions of the PA Act are

therefore a significant distinguishing feature of that law. These provisions are consistent

with the recognition of Indigenous peoples’ rights,66 and international best practice.67

They also accord with the view expressed by several people consulted for this research

that the SIG’s role in the protection of WH is to support local communities to conserve

their heritage, rather than to unilaterally dictate any conservation measures (discussed at

6.5.2). However, the corollary is that although the WH Committee has called upon

Solomon Islands to declare East Rennell as a Protected Area, this cannot happen unless

and until the East Rennellese Landowners provide their consent (or the PA Act is

amended). The Landowner consent provisions are therefore central to the use of the Act

to protect WH.

Given this, it is useful to consider the implementation of these provisions in practice. As

explained below, inconsistency between these provisions and customary law poses a

challenge (see (I)). In addition, the diversity of views held by Landowners concerning the

development and conservation of their land should not be under-estimated (see (II)).

Mechanisms for ensuring that Landowners have sufficient incentive to consent to a

Protected Area declaration (see (III)) and to support it in the long term (see (IV)) need to

be explored.

(I) Inconsistency between the Landowner consent provisions and customary law

poses a challenge

The PA Regulations prescribe a process (referred to here as the ‘prescribed

consent process’) involving the ‘landowning tribe’ and ‘neighbouring tribes’,

which must be implemented before a Protected Area application relating to

customary land can be submitted. That process involves the landowning tribe

66 See, eg, United Nations Declaration on the Rights of Indigenous Peoples, GA Res 61/295, UN GAOR, 61st sess, 107th plen

mtg, Supp No 49, UN Doc A/RES/61/295 (13 September 2007) arts 18-19. 67 Lausche, above n 16, 46.

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holding a meeting to discuss the submission of an application.68 If they reach a

consensus or make a resolution in support of an application, the tribe’s leaders

must inform the leaders of any neighbouring tribes, and village meetings must be

held to get ‘wider endorsement’ of the proposed application.69 The leaders of the

landowning tribe must then make a written agreement documenting their

intention, which must attach a map of the proposed Protected Area.70 The

agreement must be signed by the leaders of neighbouring tribes,71 to ensure the

boundaries of the proposed Protected Area are not disputed. Minutes of the

meeting at which the landowning tribe reached a consensus or resolved to make

the Protected Area application must be submitted to the Director with the

application.72 The Director must then assess the application and make a

recommendation to the Minister, who decides whether the site is to become a

Protected Area.73

The Minister cannot declare an area to be protected unless he or she is satisfied

that the people with rights and interests in the area (the Landowners) consent to

the declaration.74 To help the Minister ascertain whether this is the case, the Act

requires the Director to carry out certain tasks, including verifying who the

Landowners are and discussing the application with them.75 However, given the

resource constraints facing the Ministry of Environment and the difficulties

involved with determining customary land rights, it is unlikely that the Director

will strictly comply with these requirements. It is more likely that, at least in some

instances, the Director (and the Minister) will rely on the documents submitted

with the Protected Area application as proof that the Landowners consent to the

application. These documents include those arising from the prescribed consent

process (summarised in the previous paragraph) such as the minutes of the

meeting at which the landowning tribe decided to make the application, and the

agreement signed by the tribal leaders.76 Given the practical importance of these

68 PA Regulations reg 44(1)(a). 69 Ibid reg 44(1)(b)-(c). 70 Ibid reg 44(1)(d). 71 Ibid reg 44(1)(e). 72 Ibid reg 44(2). 73 PA Act s 10(1). 74 Ibid s 10(7)(c). 75 Ibid s 10(2)(a), (d). 76 There is no regulation that specifically requires this agreement to be submitted with the application. However, the prescribed

application form (PA Regulations sch 2 form A) indicates that ‘a boundary agreement’ should be included with the application, if one has been signed. Regulation 15 indicates that an agreement concluded as part of the prescribed consent process (under regulation 44) is a ‘boundary agreement’.

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documents, the implementation of the prescribed consent process is central to the

issue of Landowner consent for a Protected Area application.

A potential challenge associated with implementing the prescribed consent

process at East Rennell is its relationship with customary law. As explained above,

under this process, the ‘landowning tribe’ decides whether a Protected Area

application will be submitted, by reaching a consensus or making a resolution.

While this may be compatible with customary decision-making processes in some

parts of the country, in Rennell land rights are held individually (see 6.3.1 and

7.3.2). Consequently, if the prescribed process was implemented at East Rennell,

an individual landowner might not consider himself bound by the tribe’s decision.

Furthermore, implementing the process could cause or exacerbate disputes about

land rights (as has been the experience with logging and mining agreements

entered into on a tribal basis – see 7.3.2).

While it is increasingly accepted that local people should be involved in decisions

concerning the conservation of their land,77 questions remain about what

processes should be implemented to ensure that this occurs.78 The most

appropriate process to implement at East Rennell to obtain widespread community

support for a Protected Area, and satisfy the requirements of the PA Regulations,

is yet to be determined. As part of the 2013 LLEE project, meetings were held in

the four East Rennell communities, with an expectation that these community

groups would decide whether to support a Protected Area application (which as

explained above is the first step of the consent process prescribed under the PA

Regulations). In addition, the author suggested that the consent of the nine East

Rennellese chiefs be specifically obtained, to enhance the legitimacy of the

communities’ decisions. It may be however that the consent of other landowners

also needs to be individually sought, to ensure the application has the requisite

level of community support. If and when the Protected Area process is

recommenced at East Rennell, an appropriate consent process needs to be

designed through further discussions with the local communities and their leaders.

77 See, eg, Rio Declaration on Environment and Development, Report of the United Nations Conference on Environment and

Development, UN Doc A/CONF.151/6/Rev.1 (1992) principles 10, 22; Lausche, above n 16, 45; UNESCO, Operational Guidelines for the Implementation of the World Heritage Convention, UN Doc WHC.16/01 (26 October 2016) para 123.

78 Robert James Hales et al, ‘Indigenous Free Prior Informed Consent: A Case for Self Determination in World Heritage Nomination Processes’ (2013) 19(3) International Journal of Heritage Studies 270, 273.

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It is noteworthy that the landowner consent provisions in many provincial

ordinances differ from those in the PA Act. For example, under the Choiseul

Province Resource Management Ordinance 1997, an application for a resource

order can only be made by ‘qualified requesters’.79 ‘Qualified requesters’ are the

persons who, according to customary law, are entitled to make resource

management rules that are binding on the local people and outsiders.80 Similar

provisions are contained in the Isabel Province Resource Management and

Environmental Protection Ordinance 200581 and the Western Province Resource

Management Ordinance 1994.82 Therefore, these ordinances do not prescribe

precisely who is entitled to request a resource order, nor any decision-making

process that the local people must follow. Those matters are determined under the

applicable customary laws. A key benefit of that approach is that it allows local

people to apply their own customary methods to decide whether to apply for a

resource order. However, there is a risk that the process may be abused by people

who declare themselves entitled to make decisions under custom, when they do

not possess such power. Provisions in the ordinances that allow people to object

to the declaration of a resource order on the grounds that the applicant is not a

‘qualified requester’83 may help guard against such abuse. If implementation of

the prescribed consent process in the PA Regulations proves problematic,

consideration should be given to amending those provisions to reflect the

approach taken in the abovementioned ordinances.

The landowner consent provisions of the draft Lake Tegano Natural Heritage

Park Ordinance 2009 differ from those in the laws of other provinces. Under the

draft ordinance, there is no requirement for the landowners to submit an

application before East Rennell becomes a protected area. Rather, the ‘Lake

Tegano Natural Heritage Park’ is established when the ordinance comes into

force.84 The draft ordinance states that when this happens, the customary owners

79 Choiseul Province Resource Management Ordinance 1997 cls 12(3)(c), 13(1). 80 Ibid cl 4. 81 Isabel Province Resource Management and Environmental Protection Ordinance 2005 cls 4, 19(3)(c), 20(1). 82 Western Province Resource Management Ordinance 1994 cls 4, 12(3)(c), 13(1). 83 Choiseul Province Resource Management Ordinance 1997 cl 13(5)-(10); Isabel Province Resource Management and

Environmental Protection Ordinance 2005 cl 20(6)-(11); Western Province Resource Management Ordinance 1994 cl 13(5)-(10).

84 Draft Lake Tegano Natural Heritage Park Ordinance 2009 cl 5(1).

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of the park ‘shall’ sign a consent form.85 The form is to be signed by at least two

members representing a customary landowner group in the presence of a chief or

village elder.86 According to the ordinance, this process gives the Lake Tegano

Natural Heritage Park Authority (which is established under the ordinance) the

power to conserve, manage and protect the site.87 The ordinance is silent as to the

consequences of any customary owners refusing to sign the consent form. In any

event, as provincial ordinances prevail over customary laws,88 these consent

provisions have no legal effect and merely create confusion. They should

therefore be revised if the draft ordinance is every finalised.

(II) Landowners may hold different views about the conservation and development of

their land

Land and marine tenure in Solomon Islands is highly fragmented,89 so a proposed

Protected Area may include land owned by several groups with different opinions

about development and conservation. Even if the site is under one system of

customary land tenure, it cannot be assumed that all landowners will agree on its

future.90 Long-standing rivalries and tensions between and within such groups

may contribute to them holding diverse views.91

The fact that a site is owned by several groups is not necessarily fatal to the

establishment of a protected area. For example, a large MPA has been established

at Tetepare, which is owned by multiple groups.92 However, Moseby et al (who

were involved with the MPA’s establishment) note that this outcome was unlikely

85 Ibid cl 18(1). 86 Ibid cl 18(2). 87 Ibid cl 18(4). 88 Solomon Islands Independence Order 1978, sch (‘Constitution of Solomon Islands’) sch 3 para 3. 89 See, eg, Simon Foale and Bruno Manele, Privatising Fish? Barriers to the Use of Marine Protected Areas for Conservation

and Fishery Management in Melanesia, Resource Management in Asia-Pacific Working Paper 47 (2003) 3. 90 See, eg, Marianne Pederson, Conservation Complexities: Conservationists’ and Local Landowners’ Different Perceptions of

Development and Conservation in Dandaun Province, Papua New Guinea, State, Society and Governance in Melanesia Discussion Paper 7 (The Australian National University, 2013); Joeli Veitayaki et al, ‘On Cultural Factors and Marine Managed Areas in Fiji’ in Jolie Liston, Geoffrey Clark and Dwight Alexander (eds), Pacific Island Heritage: Archaeology, Identity and Community (ANU E Press, 2011) 37, 45; Adam M Trau, Chris Ballard, Meredith Wilson, ‘Bafa Zon: Localising World Heritage at Chief Roi Mata’s Domain, Vanuatu’ (2014) 20(1) International Journal of Heritage Studies 86, 98; Paige West and Dan Brockington, ‘An Anthropological Perspective on Some Unexpected Consequences of Protected Areas’ (2006) 20(3) Conservation Biology 609, 614; Simon Foale, ‘Where’s Our Development? Landowner Aspirations and Environmentalist Agendas in Western Solomon Islands’ (2001) 2(2) Asia Pacific Journal of Anthropology 44, 45; Jonathan M Lindsay, Creating Legal Space for Community-Based Management: Principles and Dilemmas (Food and Agriculture Organisation of the United Nations, 1998) 8.

91 Veitayaki et al, above n 90, 45. 92 Katherine E Moseby, John P Labere and John J Read, ‘Landowner Surveys Inform Protected Area Management: A Case Study

from Tetepare Island, Solomon Islands’ (2012) 40 Human Ecology 227, 227.

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given the area’s fragmented ownership.93 Elsewhere, this characteristic may

impede conservation efforts. In recognition of this, Foale warns of the formulation

of conservation projects based upon ‘fuzzy romantic notions of ‘communities’ as

happy cohesive social units that are capable of and willing to work together to

manage their resources’.94

The potential for the landowners of a WH site to hold diverse views must be

considered in the development of conservation strategies. This has been

recognised elsewhere in Melanesia. For example, Denham has noted that the

Kawelka (the customary owners of the Kuk Early Agricultural Site in Papua New

Guinea) are not a homogenous unit with a single perspective on the site’s

significance, and are not represented by one leader. As such, strategies for the

area’s protection must try to accommodate their diverse opinions.95 Trau, Ballard

and Wilson have made a similar observation concerning the Chief Roi Mata’s

Domain site in Vanuatu, arguing that any meaningful understanding of local

involvement in WH protection must take into account the ‘nuances, ambiguities

and fluidities’ of intra- and inter-community relations and interactions.96

The East Rennellese belong to different tribes, and practice different religions.

These and other cultural and historical differences may mean some Landowners

support the establishment of the Protected Area while others object to it. Any such

objections would prevent the Minster from being able to declare East Rennell as

a Protected Area,97 and so would prevent the PA Act from being effectively

utilised to protect WH. The Minister could also not declare the area to be protected

if there was a dispute over land ownership.98

These issues could also plague the two sites on Solomon Islands’ Tentative List.

For example, the Marovo-Tetepare Complex’ site supports a population of nearly

11,000 people living in more than 50 villages.99 Obtaining widespread Landowner

support for the declaration of that site as a Protected Area is likely to be difficult.

93 Ibid. 94 Foale, above n 90, 63. 95 Tim Denham, ‘Book review: Kuk Heritage: Issues and Debates in Papua New Guinea, Edited by Andrew Strathern and Pamela

J Stewart’ (1999) 34(2) Archaeology in Oceania 89, 90. 96 Trau, Ballard and Wilson, above n 90, 98. 97 PA Act s 10(7)(c). 98 PA Regulations reg 14(3). 99 UNESCO, Marovo – Tetepare Complex <http://whc.unesco.org/en/tentativelists/5414/>.

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The creation of smaller Protected Areas at key locations within the site may

however be feasible.

(III) Landowners may need incentives before they consent to the declaration of their

land as a Protected Area

If East Rennell was declared to be Protected Area, the local people would be

subject to the restrictions imposed by the PA Regulations and the management

plan (which are discussed at 8.6). Consequently, activities they currently rely on

for their livelihoods (such as harvesting coconut crabs and fish) could be

restricted. A declaration would also prevent them from receiving royalties for

logging and mining, as those activities are prohibited in a Protected Area.

It has been said that Solomon Islanders are rarely interested in participating in

conservation programs if they are not accompanied by a real promise of

alternative development.100 In this context, establishing protected areas can be

challenging because local people need to be convinced that the process will

benefit them.101 While the East Rennellese may receive some benefits from the

declaration of their land as a Protected Area, they are largely intangible and long

term.102 Consequently, it is unclear whether they will perceive they have sufficient

incentive to consent to a declaration.

The provision of financial and technical support for alternative livelihood projects

may encourage some East Rennellese to support the establishment of a Protected

Area. However, as noted previously, implementing such projects on the island is

difficult given the significant constraints to development that exist there. These

constraints thus present a challenge to using the PA Act to protect the site’s OUV.

This may also impede the protection of the two sites on Solomon Islands’

Tentative List under the Act. Like at East Rennell, local communities living within

those sites depend on marine and forest ecosystems for their livelihoods.103

100 Martha Macintyre and Simon Foale, ‘Global Imperatives and Local Desires: Competing Economic and Environmental

Interests in Melanesian Communities’ in Victoria Lockwood (ed), Globalisation and Culture Change in the Pacific Islands (Pearson Prentice Hall, 2004) 149, 161.

101 See, eg, Veitayaki et al, above n 90, 41. 102 They may include improved food security, increased tourism, greater resilience to climate change, improved access to funding

sources: see Price et al, above n 17, 255-6. 103 UNESCO, Marovo – Tetepare Complex <http://whc.unesco.org/en/tentativelists/5414/>; UNESCO, Tropical Rainforest

Heritage of Solomon Islands <http://whc.unesco.org/en/tentativelists/5416/>.

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(IV) Mechanisms for ensuring the long-term support of the Landowners need to be

explored

Under the PA Act, Landowner consent is a prerequisite to the declaration of a

Protected Area, but there is no legal requirement for Landowner support at any

later stage. Once the Protected Area is established, only the Minister can revoke

the declaration, and this can only be done in a narrow range of circumstances.104

The withdrawal of Landowner support for a Protected Area does not in itself give

the Minister grounds to cancel the declaration. However, in practice if

Landowners do not support a Protected Area they are unlikely to comply with its

rules nor actively participate in its management. Consequently, the Act is not

likely to effectively protect a WH site without the long-term support of the

relevant Landowners.

Under legislation in some other jurisdictions, long-term landowner support for

conservation is secured when the protected area is established, through binding

agreements and instruments such as easements and covenants registered against

the title of the land.105 Indeed, according to the International Union for the

Conservation of Nature’s (IUCN) Guidelines for Protected Area Legislation, a

site should not be recognised as a protected area until such an agreement is in

place.106 However, that approach is unlikely to be appropriate in Solomon Islands

for the reasons set out below.

Written agreements often carry little weight among Solomon Islanders,

particularly agreements that impact on issues traditionally governed through

customary law, such as land tenure and rights. This was acknowledged by

Elizabeth Wingham and Ben Devi, who were both involved with the preparation

of the East Rennell WH nomination dossier. In a reflection piece on the

nomination process, they noted:

For the people of the Solomon Islands, written agreements or contracts are not part of the culture. For long term commitment to a programme, it would be more

104 PA Act s 10(8); PA Regulations reg 21. 105 Lausche, above n 16, 100-102 106 Ibid 162.

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effective to arrange an annual meeting for the stakeholder groups to reaffirm their support.107

Trau, Ballard and Wilson made a similar comment in relation to the Chief Roi

Mata’s Domain (CRMD) WH site in Vanuatu. They wrote:

Within the [CRMD landowning] community, written and signed formal agreements are accorded little value, weight or respect…The protection of the CRMD buffer zone and the World Heritage property is reliant on the verbal commitments and social practices and principles (in other words, the kastom) of the customary landowners, both individually and collectively as the various community groups and forces ebb and flow in terms of majority opinion.108

Before East Rennell could be declared as a Protected Area, the area’s tribal leaders

would have to make a written agreement documenting their consent to the

protection of their land.109 However, as future generations may not feel bound by

that agreement, it cannot always be taken as conclusive evidence that the Protected

Area enjoys local support. Furthermore, future generations cannot be bound by

the agreement through an easement or covenant as there is no legal mechanism

for such instruments to apply to customary land.

For the PA Act regime to effectively protect the East Rennell WH site, it is

therefore necessary to consider how the support of the local people will be

maintained in the long term. This is likely to require ongoing consultations and

negotiations, as well as the provision of support to enable the East Rennell people

to maintain their livelihoods and effectively manage the Protected Area in

accordance with the Act.

8.5 The ownership of protected areas

The declaration of a WH site as a protected area could be accompanied by the acquisition

of the site by the State. Indeed, land acquisition is required for some protected areas

created under the fortress style protected area laws.110 The PA Act does not prohibit the

107 Elspeth J Wingham and Ben Devi, ‘The Involvement of Local People in the Management of a Proposed World Heritage Site

at East Rennell, Solomon Islands’ in Hans D Thulstrup (ed), World Natural Heritage and the Local Community: Case Studies from Asia Pacific, Australia and New Zealand (UNESCO, 1999) 79, 83.

108 Trau, Ballard and Wilson, above n 90, 97. 109 PA Regulations reg 44(1)(d). 110 An area must be compulsorily acquired before it can be declared a sanctuary for the purpose of conserving flora and fauna:

FRTU Act ss 44(1)(s). Land acquisition may be required for the declaration of a national park, because it is an offence to reside in a park without a permit, which can only be granted for a narrow range of purposes (such as scientific research): National Parks Act (Cap. 149) ss 5-6.

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acquisition of Protected Areas, however the transfer of such a site requires the consent of

the Minister. If Ministerial consent is not obtained, the Minister can in some

circumstances revoke the Protected Area declaration.111

The SIG has the power to acquire an interest in any customary or registered land

(including protected areas) under the Land and Titles Act (Cap. 133). If the protected area

is customary land, it could be sold or leased to the Commissioner of Lands or the relevant

provincial assembly, through the processes prescribed in that Act.112 If any part of the site

was registered land, the holder of the perpetual estate or fixed term estate in that part113

could transfer its interest to any government entity.114 In addition, regardless of the land

tenure, the protected area could be compulsorily acquired by the Commissioner of

Lands.115 The compulsory acquisition would only be lawful if done for a ‘public

purpose’,116 a term that is not defined in the Land and Titles Act. Recent case law suggests

that this would require the acquisition to be of ‘direct general benefit to the

community’.117 If the site was acquired for the purpose of protecting WH, the acquisition

could potentially meet that test.

While it is unclear whether there is any precedent for the lawful compulsory acquisition

of land for heritage conservation purposes in Solomon Islands,118 it has happened

elsewhere in the world.119 The acquisition of a protected area by the SIG could enable the

government to implement conservation measures that would not be practicable or lawful

if the land was under customary or private ownership. However, as explained below, this

approach may: (I) fail to protect the site’s heritage values; (II) infringe the rights of the

landowners; (III) contribute to land disputes; and (IV) place an unreasonable burden on

the SIG. Therefore, it is unlikely to be appropriate for the protection of WH sites.

111 PA Regulations reg 19. 112 Land and Titles Act (Cap. 133) part V, division I. 113 In Solomon Islands, registered land is either held in perpetual estate or fixed term estate: Land and Titles Act (Cap. 133) ss

112-113. 114 Land and Titles Act (Cap. 133) s 172. 115 Ibid s 60. The compulsory acquisition process is explained in Price et al, above n 17, 40-45. 116 Ibid s 71(1). 117 Korean Enterprises Limited v Attorney General [2014] SBCA 4. See also Talasasa v Attorney General [2012] SBHC 85;

Price et al, above n 17. 41-44. 118 Some land in Western Province was purportedly acquired by the Minister for Lands for the purpose of conservation. However,

the High Court found that the true purpose of that acquisition was to build a tourist resort, and thus the acquisition was declared to be unlawful: Talasasa v Attorney General [2012] SBHC 85.

119 See, eg, Tom Blomley et al, ‘‘Land Grabbing’: Is Conservation Part of the Problem or Solution?’ Briefing (International Institute for Environment and Development, September 2013); Andrew Hall, ‘Powers and Obligations in Heritage Legislation’ in Webber Ndoro, Albert Mumma and George Abungu (eds), Cultural Heritage and the Law: Protecting Immoveable Heritage in English-Speaking Countries of Sub-Saharan Africa, ICCROM Conservation Studies 8 (ICCROM, 2008) 65; Christopher Kidd and Justin Kenrick, ‘The Forest Peoples of Africa: Land Rights in Context’ in Land Rights and the Forest Peoples of Africa Historical, Legal and Anthropological Perspectives - Overview: Analysis & Context (Forest Peoples Programme, 2009) 4, 11.

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(I) The acquisition of a protected area may not effectively protect the site’s heritage

values.

For example, if a site’s heritage values were linked to the system of customary

land tenure practiced by the area’s owners or the continuing cultural traditions

associated with the place, the acquisition of the site would destroy rather than

protect those values. Some sites in Solomon Islands that could potentially qualify

for WH listing are likely to have such values.

(II) The acquisition of a protected area may infringe the rights of the owners and

occupiers of the land.

This is particularly the case if the acquisition was compulsory and involved the

relocation of people from their land. Rights that may be infringed include those

recognised under the United Nations Declaration on the Rights of Indigenous

People, such as the right of Indigenous people to the land and resources that they

have traditionally occupied,120 and their right to practice their cultural

traditions.121 Constitutional protections relating to compulsory acquisition, which

require that there be a reasonable justification for the acquisition and that adequate

compensation be paid,122 would help guard against the infringement of these

rights. Nevertheless, given the strong cultural, economic and social significance

of land to Solomon Islanders, any heritage protection measure that involved

separating people from their land is likely to raise questions about its

appropriateness and legality. The SIG itself has indicated that the compulsory

acquisition of land is ‘politically unpopular’ and thus to date it has exercised this

power only occasionally.123

120 United Nations Declaration on the Rights of Indigenous Peoples, GA Res 61/295, UN GAOR, 61st sess, 107th plen mtg, Supp

No 49, UN Doc A/RES/61/295 (13 September 2007) art 26(1). See 4.3.2 for a discussion of UNDRIP. 121 Ibid art 11. 122 Constitution of Solomon Islands s 8. 123 Solomon Islands Government, above n 36, 9.

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(III) If the land to be acquired was under customary tenure, the acquisition process is

likely to be lengthy and may cause or exacerbate land disputes.

Regardless of whether the acquisition was voluntary or compulsory, the process

would involve a government officer identifying the people who, under custom,

are entitled to dispose of the land.124 This would require substantial consultations,

as laws regarding customary land tenure are not codified, and are usually

unwritten (see 2.3.5). The identified people would be entitled to receive

consideration for the sale or lease of their land, or compensation for its

acquisition.125 Allen et al have found that natural resource development projects

involving financial payments to land owners are a common cause of disputes

among community members in Solomon Islands.126 It therefore follows that land

acquisition for conservation could also lead to disputes, which may hinder the

government’s efforts to protect the heritage values of the place.

(IV) The acquisition of a protected area would place a significant burden on the SIG.

For the acquisition of land to be an effective approach to the protection of a WH

site, the SIG would require the financial and human resources to administer the

acquisition process and pay the necessary consideration or compensation. It would

also require the resources to develop and implement the ongoing management and

protection measures required to protect the site. Given the current economic

climate in Solomon Islands and competing development priorities, the

government may not be willing and able to commit these resources to the

protection of a heritage site.127

For these reasons, the acquisition of a protected area by the State is unlikely to be a viable

option for WH protection in Solomon Islands.

124 Land and Titles Act (Cap. 133) ss 63, 71-77. 125 Ibid ss 79, 81, 83-84. 126 Matthew Allen et al, Justice Delivered Locally: Systems, Challenges and Innovations in Solomon Islands (World Bank, 2013)

21. 127 Denham, Muke and Genorupa make this point in relation to the protection of the Kuk Early Agricultural Site in Papua New

Guinea. They state it would be both unrealistic and inappropriate to burden the government with substantial and continuing financial commitments associated with the site’s conservation: Tim Denham, John Muke and Vagi Genorupa, ‘Nominating and Managing a World Heritage Site in the Highlands of Papua New Guinea’ (2007) 39(3) World Archaeology 324, 333.

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8.6 The protection of World Heritage Sites through the rules of

protected areas

The PA Act facilitates the conservation of Protected Areas through a range of

mechanisms. For example, it requires that each Protected Area have a management plan,

which must address issues such as public awareness, staff training and research. It also

provides for the appointment of a management committee for each Protected Area, which

is responsible for governing the site (see 8.7). Importantly, from a legal perspective, the

Act also imposes rules regulating the use and development of Protected Areas. As will be

explained, these rules can be:

(I) tailored to address the threats to the site’s OUV;

(II) consistent with the sustainable use of the site; and

(III) based on customary laws.

These features of the PA Act regulatory regime facilitate the protection of WH in a manner

consistent with the modern approach to heritage conservation. However, a key limitation

of the Act is it provides little protection against threats arising from outside the site’s

boundaries (see (IV)).

(I) The rules of Protected Areas can be tailored to address threats to the site’s

outstanding universal value

Under some protected area laws in Solomon Islands, the rules that apply within

the declared area are prescribed in the legislation, which makes no provision for

the development of site-specific rules.128 This limits the usefulness of these laws.

Legislation that enables rules to be tailored to the particular threats facing a WH

site is likely to provide greater protection to the site’s OUV.

The development of site-specific rules is possible under some provincial

ordinances. For example, under the Isabel Province Resource Management and

Environmental Protection Ordinance 2005, the resource order made by the

provincial executive establishing the protected area also contains the rules that

apply in that site.129 The rules can therefore be designed to address the issues

128 For example, the rules that apply in a state forest established under the FRTU Act are specified at s 22 of that Act. 129 Isabel Province Resource Management and Environmental Protection Ordinance 2005 cl 20(13), sch 4.

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required to conserve the area.130 The draft Lake Tegano Natural Heritage Park

Ordinance 2009 is different in that it purports to give the Lake Tegano Natural

Heritage Park Authority (a committee established under the ordinance)131 the

power to make by-laws regulating the use of the site.132 However, these by-laws

would not be binding under State law, so this provision could cause confusion

regarding the status of the by-laws. It should therefore be amended if the draft

ordinance is ever finalised. As explained below, the development of site-specific

rules is also possible under the PA Act regime.

The PA Regulations contain some rules that apply to all Protected Areas. For

example, the industrial and commercial extraction of timber, round logs and

minerals from Protected Areas is prohibited.133 A person who contravenes this

prohibition is liable to pay a fine of up to $SBD 100,000 (approximately $AUD

16,200).134 This provision is important for the protection of WH, as those

industries are a threat to East Rennell (see 6.2.1) and are likely to threaten other

places of heritage significance in Solomon Islands. If East Rennell was declared

a Protected Area, logging and mining in the site would be banned, which is an

outcome that the WH Committee is seeking. The PA Regulations also restrict

certain activities in Marine Protected Areas (MPAs) such as fishing within

spawning aggregations or during spawning seasons,135 and the use of drag nets.136

These provisions could help address the over exploitation of marine species,

which may threaten a WH site.

The PA Regulations also facilitate the development of site-specific rules for a

Protected Area by enabling some rules in the Regulations to be modified by a

management plan and/or a decision of the management committee.137 For

example, in a Protected Area it is an offence to take any organism,138 kill any

living creature, dump any waste, or damage or remove any object of cultural

130 See also Choiseul Province Resource Management Ordinance 1997 cl 13(2), sch 3 (form B); Western Province Resource

Management Ordinance 1994 cl 12(2), sch 3 (form B). 131 Draft Lake Tegano Natural Heritage Park Ordinance 2009 cl 5(1). 132 Ibid cl 38(1). 133 PA Regulations reg 61(1). The terms ‘commercial’ and ‘industrial’ are not defined in the PA Regulations, and their precise

meaning is unclear. For discussion of this issue and its implications see Price et al, above n 17, 269-70. 134 Ibid reg 61(3). 135 Ibid reg 50(1). 136 Ibid reg 52(1). 137 Ibid regs 62(1), 63(1). 138 Ibid reg 62(1).

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significance,139 without authorisation under the management plan or by the

management committee. Failure to comply can lead to a person being fined up to

$SBD 100,000 (approximately $AUD 16,200).140 Rules such as these are

extremely broad, as they cover a range of activities that could potentially damage

a Protected Area. Consequently, most activities that will be carried out in the site

must be expressly authorised to be lawful (including those undertaken by local

communities). Through this authorisation process, site-specific rules for the

Protected Area can be developed which are tailored to address the threats to the

site’s OUV.

There is no provision in the PA Act or the PA Regulations that requires compliance

with a management plan or a decision of the management committee. Therefore,

these rules and decisions are not in themselves legally binding. However, by

permitting activities that are prohibited under the Regulations, these rules and

decisions gain legal effect. For example, the 2013 draft management plan for East

Rennell states that no person may take a coconut crab from the area if the crab is

carrying eggs or is less than 90mm long.141 If a person breached that rule by, for

example, taking a coconut crab that was carrying eggs, the person would have

breached the prohibition under the PA Regulations against the taking of any

organism without authorisation.142 Consequently, the breach of the management

plan rule could be enforced as a breach of the PA Regulations, and the person

could be fined.

A potential benefit of the PA Act approach is that site-specific rules developed

through a management plan or management committee decision may be amended

more easily than rules prescribed in a declaration instrument. The management

committee could amend a site-specific rule simply by making a new decision

regarding the issue, or by revising the management plan.143 Neither approach

would require the approval of the Director or the Minister for Environment.

Consequently, this feature of the PA Act regime allows the management

139 Ibid reg 63(1)(i), (d), (j), (k). 140 Ibid reg 63(2). 141 Live and Learn Environmental Education, above n 37, 15. 142 PA Regulations reg 62(1). 143 One of the management committee’s functions is to review the management plan for the Protected Area: PA Act s 12(3); PA

Regulations reg 24. It is implicit from this that the management committee has the power to amend the management plan.

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committee to quickly alter the rules in response to emerging threats to the site. In

addition, if the rules were based on customary laws, it reduces the risk of the

customs being rendered static by their incorporation into the management plan

(discussed at (III)). However, this feature could also prove to be a disadvantage.

Without government oversight, the management committee could amend the rules

to suit its interests, to the detriment of the protection of the site.

(II) The rules of Protected Areas can be consistent with the sustainable use of the site

The modern approach to WH conservation views heritage protection as a

component of sustainable development, and recognises the relationship between

humans and heritage places (see 4.3.1). Due to their age, Solomon Islands’

protected area laws based on the fortress approach do not refer to sustainable

development. For example, the National Parks Act (Cap. 149) regulates activities

that may affect a national park, such as hunting, causing fires and taking

vegetation.144 However, it makes no reference to the rights of local people, or any

social or economic issues associated with the regulated activities. In contrast, the

objectives of the PA Act include promoting environmentally sound and

sustainable development.145 This objective is supported by the PA Regulations,

which state that every decision made to give effect to the Act and the Regulations

must consider the need for the sustainable use of natural resources.146

This aspect of the modern approach to WH conservation is reflected in the

provisions of the PA Regulations regarding the classification of Protected Areas

and their management objectives. Pursuant to the Regulations, a site’s

management plan should be consistent with the objectives for the class to which

the Protected Area is assigned.147 The objectives of some classes are akin to the

traditional approach to heritage protection, in that their primary aim is to protect

the area from the impacts of human activities.148 However, other classes are

consistent with the modern approach. For example, sites classified as ‘natural

144 National Parks Act (Cap. 149) ss 8, 10. 145 PA Act s 3(e). 146 PA Regulations reg 31(1). 147 Ibid regs 4(1), 11(2). 148 For example, a Protected Area designated as a ‘closed area’ must be managed to ensure biodiversity rehabilitation. All human

activities that may be detrimental to the environment are prohibited in such an area. Human occupation of a Protected Area designated as a ‘nature reserve’ is also prohibited: ibid regs 5, 9, sch 1 (cls 1, 5).

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monuments’ must be managed so that the traditional or spiritual association of the

customary landowners is not restricted or impaired.149 Similarly, in ‘resource

management areas’, the sustainable use of natural resources to meet the basic

livelihood needs of local communities should be permitted, but managed to ensure

that the needs of future generations are not compromised.150

Ensuring food security and supporting livelihood development through

sustainable resource management are priorities of the East Rennellese people.151

Therefore, if they were to support the declaration of their land as a Protected Area,

it is likely that they would seek to have it classified as a ‘resource management

area’. If that happened, the site’s Protected Area management plan could aim to

ensure the conservation of the site’s OUV as well as supporting the local peoples’

sustainable development goals.

(III) The rules of Protected Areas can be based on customary laws

The incorporation of customary law into a State law is often cited as an

appropriate approach to heritage protection in a legally plural society.152 As will

be explained, the PA Act enables this because the rules in a Protected Area

management plan can be based on customary laws. This feature of the law is

particularly important for WH sites such as East Rennell, that have been listed on

the basis of their customary protection. If the rules in a Protected Area

management plan for East Rennell were based on custom, it could potentially

strengthen adherence with customary practices,153 while also making the plan

more relevant and acceptable to the local people. However, the incorporation of

custom into the management plan raises several questions, including the impact

of this process on the customary system.

149 Ibid sch 1 (cl 3). 150 Ibid reg 8, sch 1 (cl 4). 151 See, eg, Lake Tegano World Heritage Site Association Constitution and Rules (2009) cl 2.1; Laurie Wein, East Rennell World

Heritage Site Management Plan (Solomon Islands National Commission for UNESCO, 2007) 9. 152 See, eg, Barbados Programme of Action for the Sustainable Development of Small Island Developing States, UN Doc

A/CONF.167/9 (October 1994), part I annex II para 79; Albert Mumma, ‘The Link Between Traditional and Formal Legal Systems’ in Webber Ndoro and Gilbert Pwiti (eds), Legal Frameworks for the Protection of Immoveable Cultural Heritage in Africa, ICCROM Conservation Studies 5 (ICCROM, 2005) 22, 24; Catherine Giraud-Kinley, ‘The Effectiveness of International Law: Sustainable Development in the South Pacific Region’ (1999-2000) 12 Georgetown Environmental Law Review 125, 159; Erika Techera, Local Approaches to the Protection of Biological Diversity: The Role of Customary Law in Community Based Conservation in the South Pacific, Macquarie Law Working Paper 2007-2 (2007).

153 See, eg, Tom Graham, ‘Flexibility and the Codification of Traditional Fisheries Management Systems’, SPC Traditional Marine Resource Management and Knowledge Information Bulletin 3 (1994) 2.

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The existing 2007 management plan for East Rennell has been barely

implemented, in part because local people have little awareness and understanding

of it (see 6.4). The identification and documentation of the customary laws of the

East Rennellese in a Protected Area management plan may lead the local people

to have greater knowledge and respect for the plan. It could also help ensure that

the plan is consistent with custom, and that it acknowledged and allowed for the

continuation of relevant customary practices. Substantial inconsistency between

customary laws and the rules is likely to weaken compliance with both, and may

lead to conflicts between community members.

The incorporation of customary laws into the management plan could also

improve compliance with the customs by making them enforceable through the

State legal system. As explained in (I) above, a rule in the management plan will

be legally binding if it authorises an activity that would otherwise be prohibited

under the PA Regulations. Consequently, if such a rule was based on a customary

law, that custom would in effect become enforceable under the PA Act. There are

significant challenges associated with enforcing the PA Act through the State legal

system (see 8.7). However, in some circumstances, it could be more effective than

the customary system, for example if the offender was an outsider or if customary

governance was weak (as appears to be the case in East Rennell – see 6.3.2).

The incorporation of customary laws into a Protected Area management plan is

not without its difficulties. Firstly, customary laws addressing the threats to a WH

site may not exist. In addition, customs being practised may be inconsistent with

WH protection. Therefore, it will not always be possible for the rules of a

Protected Area to be based on customary laws whilst also achieving the protection

of the site’s OUV.

Secondly, it could render the customary law static. An often-cited challenge

associated with the incorporation of customs into State law is that many customs

are inherently flexible and ‘capable of being used in different ways at different

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times’,154 and they may lose this characteristic through codification in State

law.155 The significance of this concern largely depends on how the State law may

be amended to respond to changes in custom.156 A Protected Area management

plan can be amended by the area’s management committee, which could be partly

or solely comprised of members of the local communities.157 While the committee

must consult with local people before amending the plan,158 it does not require the

approval of the Director or Minister for Environment. This reduces the risk that

the incorporation of a customary law into a management plan would render the

law static. This risk is more significant for protected areas declared under

provincial ordinances, because the rules that apply to an area subject to a resource

order can only be amended by order of the provincial executive.159 This is likely

to be a slower and more difficult process than the amendment of a Protected Area

management plan.

Thirdly, customary laws are often broad principles, rather than unambiguous

rules,160 which raises the question of how they can be appropriately

accommodated in a management plan. A custom may need to be altered to gain

the certainty required to become an enforceable management plan rule. If that

happened, there is a risk that the plan would misrepresent the true nature of the

customary law. In addition, over time, the codification process could lead to the

original (unwritten) customary law being in effect replaced by the modified

version contained in the management plan. Zorn and Corrin Care have noted this

concern in the context of the proof and pleading of customary law, writing:

[t]he ultimate irony of customary law is that although state law must recognise and apply custom in order to make itself a part of the culture, state law cannot use custom without turning it into something else.161

154 See, eg, Jean G Zorn, ‘Making Law in Papua New Guinea: The Influence of Customary Law on Common Law’ (1991) 14(4)

Pacific Studies 1, 24. 155 See, eg, Graham, above n 153, 2; K Ruddle, E Hviding and R E Johannes, ‘Marine Resources Management in the Context of

Customary Tenure’ (1992) 7 Marine Resource Economics 249, 267; Blaise Kuemlangan, Creating Legal Space for Community-Based Fisheries and Customary Marine Tenure in the Pacific: Issues and Opportunities (Food and Agriculture Organisation of the United Nations, 2004) 36-37; Kenneth Ruddle, ‘The Context of Policy Design for Existing Community-Based Fisheries Management Systems in the Pacific Islands’ (1998) 40 Ocean and Coastal Management 105, 113; Jean Zorn and Jennifer Corrin Care, ‘’Barava Tru’: Judicial Approaches to the Pleading and Proof of Custom in the South Pacific (2002) 51 International and Comparative Law Quarterly 612, 635; Anita Smith, ‘East Rennell World Heritage Site: Misunderstandings, Inconsistencies and Opportunities in the Implementation of the World Heritage Convention in the Pacific Islands, (2011) 17(6) International Journal of Heritage Studies 592, 601.

156 See, eg, Graham, above n 153, 3-4; Kuemlangan, above n 155, 36-37; Ruddle, above n 155, 117. 157 PA Act s 12(1). 158 PA Regulations regs 22(2), 24. 159 Isabel Province Resource Management and Environmental Protection Ordinance 2005 cl 23(1); Choiseul Province Resource

Management Ordinance 1997 cl 14(1); Western Province Resource Management Ordinance 1994 cl 14(1). 160 See, eg, Miranda Forsyth, ‘Beyond Case Law: Kastom and Courts in Vanuatu’ (2004) 35 Victoria University of Wellington

Law Review 427. 161 Zorn and Corrin Care, above n 155, 635.

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Finally, the incorporation of customary laws into a management plan could

undermine the customary system, because it may lead community members to

have less respect for laws not codified in the plan.162 In addition, by allowing the

customary law to be enforced through the State legal system, respect for

customary governance may be diminished163 (discussed further at 8.7). For these

reasons, if and when a PA Act application for East Rennell is prepared, the extent

to which the site’s management plan can and should incorporate customary laws

needs to be carefully considered.

(IV) The Protected Areas Act provides little protection against threats arising outside

the site’s borders

The PA Regulations principally regulate the activities that may be carried out

within a Protected Area. Only two provisions expressly restrict activities

occurring outside the site’s boundaries. Firstly, activities on land that may be

harmful or destructive to a MPA are prohibited unless Ministerial approval has

been obtained.164 This provision aims to protect MPAs from developments such

as logging and mining, which can affect marine areas through erosion and

sedimentation. Secondly, logging and mining in a buffer zone around every

Protected Area is unlawful, with the width of that zone being determined by the

Director,165 presumably when the Protected Area is established. While this

provision provides the site with some additional protection, it is limited because

the width of the buffer must be less than 1km.166 Furthermore, the provision may

be difficult to implement if the land in the buffer zone is under different ownership

to the Protected Area.

The PA Act therefore provides little protection against activities occurring outside

the site’s boundaries. This limitation is significant for the protection of East

Rennell, which is threatened by activities occurring in West Rennell (see 6.2).

162 See, eg, Pampa Mukherjee, ‘Community Rights and Statutory Laws: Politics of Forest Use in Uttrakhand Himalayas’ (2004)

50 Journal of Legal Pluralism and Unofficial Law 161. 163 See, eg, R E Johannes and F R Hickey, Evolution of Village-Based Marine Resource Management in Vanuatu Between 1993

and 2001, Coastal Region and Small Island Papers 15 (UNESCO, 2004) 35. Johannes and Hickey make this point in relation to the creation of community conservation areas under the Environmental Management and Conservation Act (Cap. 283) (Vanuatu).

164 PA Regulations reg 54(1). 165 Ibid reg 61(1). 166 Ibid.

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While the declaration of East Rennell as a Protected Area would make logging

and mining within the site unlawful, it would not prevent further operations in

West Rennell being approved. The regulation of those operations would still be

dependent on the Forest Resources and Timber Utilisation Act (Cap. 40), the

Mines and Minerals Act (Cap. 42) and the Environment Act 1998 (which were

analysed in 7.3). Furthermore, the PA Act could not be used to establish rules

regulating the harvesting of species or requiring the implementation of biosecurity

measures outside the site. As such, notwithstanding the declaration of East

Rennell as a Protected Area, legislation such as the Fisheries Management Act

2015 and the Biosecurity Act 2013 would still be relevant (see 7.2 and 7.4).

8.7 Protected Area governance and the enforcement of the rules of

Protected Areas

Like other State laws, the enforcement of the PA Act by the State is likely to be

challenging (see (I)). The Act may enjoy greater compliance than some other laws

because it enables local people to play a central role in the governance of Protected Areas

and the enforcement of their rules. However, when implementing the governance and

enforcement provisions of the PA Act and the PA Regulations, their interaction with

relevant customary legal systems must be carefully considered (see (II)). Furthermore,

local people will likely require training and financial resources to enable them to fulfil

statutory governance and enforcement roles (see (III)).

(I) Enforcement of the rules of a Protected Area by the State will be challenging

The PA Act and the PA Regulations provide for the appointment of inspectors,

prosecutors and rangers, who have various powers associated with monitoring

compliance with the laws and enforcing breaches. Inspectors are appointed by the

Minister of Environment.167 Their powers include inspecting Protected Areas,

stopping and searching persons and vehicles, and issuing infringement notices.168

167 PA Act s 19(1). 168 Ibid s 20(1) and 22(1)

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Prosecutions for offences can be commenced by people appointed by the

Minister,169 by the Director of Public Prosecutions, or by a public prosecutor.170

As no Protected Areas have been declared yet, it remains to be seen if and how

these enforcement provisions will work in practice. The PA Act is not immune

from the challenges associated with the enforcement of State heritage protection

laws (explained at 2.4.1). In particular, as inspectors and prosecutors are likely to

be based in Honiara, or at best in a provincial capital, they will be physically

distant from most Protected Areas. Consequently, they will require substantial

resources to travel to Protected Areas to identify and investigate breaches, which

may be beyond the Ministry of Environment’s budget. If the PA Act is to be

effective, SIG and donors must ensure that inspectors and prosecutors have

sufficient resources and knowledge of the law to carry out their statutory duties.

As explained previously, a management committee will be appointed for each

Protected Area by the national Protected Areas Advisory Committee.171 One of

the management committee’s roles is to appoint rangers for the Protected Area.172

A ranger must either be a member of the local community or a person employed

by an organisation managing the area.173 Rangers are given broad powers,

including the power to search persons and vehicles, to seize objects (including

plants, animals and equipment), and to require a person to stop an activity that

contravenes the Act or the Regulations.174

Given it will be difficult for inspectors to monitor and enforce the rules of

Protected Areas, giving local people a role in these processes may enhance

compliance. This is because the rangers will likely be stationed closer to the

Protected Area than inspectors. In addition, it may lead local community members

to feel part of the Protected Area management process, which in turn may make

them more likely to comply with its rules and actively contribute to its

conservation.175 Like inspectors and prosecutors however, rangers will require

169 Ibid s 20(2). 170 Constitution of Solomon Islands s 91(4); Criminal Procedure Code (Cap. 7) s 72. In some circumstances, police and private

persons can also commence prosecutions: Criminal Procedure Code ss 73, 75-76. 171 PA Act s 12(1). 172 PA Regulations reg 65(1). 173 Ibid 65(2). 174 Ibid 66(1). 175 This feature of the law is consistent with international best practice: see, eg, Lausche, above n 16, 137.

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substantial resources and potentially training to carry out these roles (see (III)). In

addition, as explained in the next section, the interaction between the work of

rangers and customary governance must be carefully considered if local

community members are to be appointed to this role.

(II) The interaction between the customary legal system and the governance and

enforcement provisions of the PA Act and Regulations must be considered

As explained in 8.2.2(A), a Protected Area management committee could be a

new organisation, established specifically to manage the site. Alternatively, in

some circumstances an existing organisation (including a customary governance

body, such as a Council of Chiefs) could be appointed as the management

committee. This might be appropriate if the customary body is functioning well

and is respected by the local community. Whatever approach is taken, the

relationship between the management committee and existing customary

governance bodies needs to be carefully considered before a decision on the

composition of the committee is made.

The PA Act regulates rights to lands and resources, which are issues traditionally

governed under customary law. Therefore, in exercising its functions under the

Act, the management committee is likely to be regulating some issues within the

jurisdiction of the customary governance body. Legally, decisions made by the

management committee under the PA Act prevail over customary law.176

However, in practice the relationship between such decisions and custom is more

complex. This can be demonstrated by considering the governance of a Protected

Area at East Rennell.

If East Rennell was declared to be a Protected Area, its Council of Chiefs could

be appointed as the site’s management committee. The Council would then

effectively wear ‘two hats’: customary governance body and management

committee under the PA Act. This would allow the Council to retain its status as

the key decision-making body within the East Rennell communities. However, it

also raises several questions. For example, if the Council was empowered to make

176 Constitution of Solomon Islands sch 3 para 3.

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decisions under the PA Act, would this erode the local peoples’ respect for the

Council’s decisions on issues of custom? In other words, would people be more

inclined to ignore or dispute such decisions on the grounds that they are ‘just

custom’? In addition, would the Council be able to manage its affairs so that

people could distinguish between decisions made by the Council in its different

capacities? It would sometimes be necessary to make this distinction, because

decisions regarding Protected Area matters could have legal implications under

the PA Act, while decisions on matters of custom would not.

Implementation of the provisions of the PA Regulations concerning the decision-

making procedures of Protected Area management committees could also prove

problematic. These provisions cover matters such as the frequency of

management committee meetings, quorums, and how decisions are made.177

These procedures are unlikely to be consistent with the Council of Chiefs’

customary procedures. Therefore, to comply with the PA Regulations, when

dealing with Protected Area matters the Council would have to adopt procedures

that differ from its customary procedures. This may pose significant logistical

difficulties. In addition, by requiring the Council to adopt the prescribed

procedures when it is carrying out its statutory role, this process could result in

the creation of a hybrid body that has little legitimacy among the local people.178

If the East Rennell Council of Chiefs was not adopted as the management

committee, a non-customary body would take that role. That body could be the

existing LTWHSA (discussed at 6.3.2) or another group established for the

purposes of the PA Act. Again, this approach raises several questions. For

example, would the appointment of a non-customary management committee with

statutory powers erode the status of the Council of Chiefs among the local people?

How would the overlap between the jurisdiction of the Council and the

management committee be managed to ensure that both bodies have the respect

of the local people and can carry out their functions?179 Johannes and Hickey have

raised similar issues in relation to the Environmental Management and

177 PA Regulations reg 27(6), sch 3. 178 Lindsay, above n 90, 7; Lausche, above n 16, 161. 179 For discussion of this point see Albert Mumma, ‘Legal Aspects of Cultural Landscape Protection in Africa’ in Cultural

Landscapes: The Challenges of Conservation, World Heritage Papers 7 (UNESCO, 2003) 156, 156.

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Conservation Act 2002 of Vanuatu, which allows for the establishment of

community conservation areas (CCA) through a process similar to that prescribed

under the PA Act.180 They note that the establishment of a CCA:

could initiate confusion as to who is in charge within the village, and trigger a downward spiral in compliance with community-based resource management due to a lack of effective enforcement.181

In Solomon Islands, this issue is evident in relation to the establishment of the

Gold Ridge Landowners’ Association (GRLA), which was set up to manage the

royalties from the Gold Ridge mining project on Guadalcanal. Most members of

the GRLA were appointed because of their educational level, rather than because

of their status within the communities. Naitoro has found that because of the

substantial powers granted to the GRLA and the association’s composition,

community elders have to some extent lost their leadership roles.182 A further

potential issue is whether the power dynamic among chiefs would be affected if

some but not all chiefs were appointed to the management committee.

The relationship between custom and the PA Act regime is also relevant to the

work of rangers. Rangers for a Protected Area are appointed by the management

committee,183 and could be people with customary authority (such as chiefs) or

people without such authority. The appointment of rangers raises several

questions concerning the relationship between their statutory roles and local

governance. For example, if a ranger is a person without customary authority, in

practice would local people respect his or her decisions, particularly if they are

inconsistent with customary law? In practice, would people turn to a chief to in

effect appeal a decision of a ranger? How would a conflict between a decision of

a ranger and a decision of a chief be managed?

The provisions of the PA Act and PA Regulations that enable local people to

participate in Protected Area governance and enforcement enable communities to

maintain significant control over their land, and provide avenues for monitoring

and enforcement which may enhance compliance. However, as the analysis above

demonstrated, because of the legally plural nature of Solomon Islands,

180 Environmental Management and Conservation Act 2002 (Vanuatu) part IV div 2. 181 Johannes and Hickey, above n 163, 35. 182 John Naitoro, ‘Mineral Resource Policy in Solomon Islands: The ‘Six Feet’ Problem’ (2000) 15(1) Pacific Economic Bulletin

132, 136. 183 PA Regulations reg 65(1).

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implementation of these provisions raises complex questions regarding their

interactions with customary law and governance. These issues warrant careful

consideration before a management committee or rangers are appointed.

The governance provisions of the draft Lake Tegano Natural Heritage Park

Ordinance 2009 differ from those in the PA Act. The draft ordinance provides for

the establishment of a new Lake Tegano Natural Heritage Park Authority to

manage the area, which is to be governed by a Board of Directors.184 It is unclear

from the report on the preparation of the draft ordinance185 why this is required,

given the existence of the LTWHSA. The draft ordinance was prepared in 2009,

the same year that the LTWHSA was established. It may simply be that the

ordinance was prepared before the association was formed. In any event, while

the LTWHSA remains operational, the establishment of a new local organisation

to manage the WH site would be inefficient and would lead to confusion over their

respective jurisdictions. As such, this feature of the draft Ordinance should be

revised before the law is passed.

(III) Local people will likely need training and resources to enable them to fulfil local

governance and enforcement functions under the PA Act

Although the PA Act facilitates local people to carry out local governance and

enforcement roles, with one exception it makes no provision for such people to be

paid. The exception is that a member of a management committee is entitled to

$SBD60 (approximately $AUD10) for attending a meeting.186 However, the

Regulations state that this payment is ‘subject primarily to the availability of

sufficient funds’,187 and thus the SIG may have grounds for refusing payment.

A common complaint of chiefs involved with local community governance is that

they should be paid by the State for their services, as it diverts them from

livelihood activities.188 On the same grounds, local people may be unwilling to

take part in Protected Area governance and enforcement without financial

184 Draft Lake Tegano Natural Heritage Park Ordinance 2009 cl 8. 185 David Lindimani, Legal Protection of East Rennell World Heritage Site: Community Consultations Report (2009). 186 PA Act s 12(5); PA Regulations reg 27(5). 187 PA Regulations reg 27(5). 188 Allen et al, above n 126, 69.

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support. This was an observation made by Heywood and Gabrys during their time

in East Rennell.189 At present, it appears unlikely that the SIG will provide such

funding. When interviewed for this research, Joe Horokou (the Director of

Environment and Conservation Division of the Ministry of Environment)

commented:

There is a perception from the [East Rennellese] people that we should be funding the site. They are asking the Ministry to employ locals as rangers and managers. The Government is faced with financial difficulties and human resource constraint. The best we can do is facilitate.190

The PA Act also does not specifically provide for management committees and

rangers to be provided with any resources to enable them to carry out their

functions, even though substantial funds may be required. 191 For example, at East

Rennell a significant expense will be the cost of fuel, required for boat and truck

transport to allow people to attend meetings and carry out other management tasks

such as monitoring. The PA Act provides for the establishment of a Protected

Areas Fund,192 which can be used to assist with the establishment and

management of Protected Areas.193 However, the Fund has not yet been set up.

Furthermore, given the economic climate in Solomon Islands, it remains to be

seen whether communities will receive any money through this Fund. It is

therefore likely that local people will need to seek financial assistance from

additional sources to enable them to fulfil their Protected Area governance and

enforcement roles. They may also require technical assistance and training to

assist them to understand and perform the tasks associated with these roles. As

only State parties can request assistance through the WH Fund (see 4.2.4(C)), the

East Rennellese can only get assistance through the Convention regime to help

them manage the site if the SIG agrees to submit an application. The WH

Committee and the IUCN should continue to encourage and support the SIG to do

so.

189 See, eg, Mike Heywood and Kasia Gabrys, Evaluation Report on Training in Community-Based Natural Resources

Management (2009). Heywood and Gabrys trained East Rennellese people in bird and tilapia monitoring, to collect base line data against which future changes could be assessed. They concluded that while the East Rennellese people are interested in natural resources management, they are ‘generally not willing to contribute voluntarily and expect monitory remuneration for their services’: at 4.

190 Interview with Joe Horokou, Director of the Environment and Conservation Division of the Ministry of Environment (Honiara, 15 August 2013).

191 In this respect, the PA Act and the PA Regulations are not consistent with best practice. IUCN’s guidelines for protected area legislation state that such laws should elaborate on the kinds of assistance the protected areas authority should provide to support communities and individuals in managing their conserved lands: Lausche, above n 16, 138.

192 PA Act s 13. 193 Ibid s 15.

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8.8 Conclusion

Solomon Islands has a duty under the Convention to take the legal measures required to

protect the East Rennell WH site. While the SIG’s enactment of the PA Act was a step

towards meeting this obligation, the site has not yet been declared a Protected Area. This

chapter contains the first comprehensive analysis of the opportunities and challenges

presented by the Act, and thus makes a novel contribution to our understanding of WH

protection in Solomon Islands. The fact that the Committee is calling upon Solomon

Islands to implement the Act at East Rennell heightens the significance of this work.

This chapter highlighted several features of the PA Act that make it a more appropriate

law for the protection of WH than protected area laws based on the ‘fortress’ approach to

conservation. It also identified legal and practical issues that may impede the Act’s

implementation. Key opportunities and challenges presented by the PA Act for WH

protection include:

1. It offers broad scope for the protection of WH values.

The PA Act could apply to both terrestrial and marine WH sites that are listed

based on their natural values and, in some cases, their cultural values. The rules

that apply to the use and development of Protected Areas provide some protection

against activities that could threaten these values. Importantly, logging and mining

is prohibited in all Protected Areas, which is significant given the destructive

effect of these industries on heritage places. Other rules of a Protected Area can

be tailored to address the particular threats facing a site, through the site’s

management plan and the decisions of the site’s management committee.

Importantly however, the Act’s strength lies in its regulation of activities within

the declared site, not in its regulation of operations on surrounding land. It

provides little protection against threats arising from outside the site’s borders.

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2. It facilitates protection of World Heritage sites through the framework of

sustainable development

The objectives and rules of a Protected Areas established under the PA Act can be

designed to not only protect the site’s WH values, but also to support the

sustainable use of natural resources by the local people and the continuation of

their cultural practices. Thus, the PA Act regime demonstrates an

acknowledgement of the strong cultural connection that many Solomon Islanders

have with their land, and the fact that many people rely on their land and its

resources for their livelihoods. Of course, designing a management regime for a

Protected Area that will ensure the protection of the site’s WH values, whilst also

allowing local people to continue to utilise the site’s resources and carry out their

cultural practices may prove challenging.

3. It reflects recognition of the rights and roles of local people in the protection of


The PA Act gives local people a role in the establishment, design and governance

of Protected Areas, and the enforcement of the area’s rules. This feature of the

regime represents a recognition of the rights of local people in relation to their

land and resources, and the contribution they can make to the protection of

heritage. It enables local people to retain significant control over their land

notwithstanding its declaration as a Protected Area. This makes the PA Act regime

more consistent with the recognition of the rights of Solomon Islanders than

earlier protected area laws. It also potentially makes the PA Act regime more

relevant and understandable to Solomon Islanders, which may encourage them to

participate in Protected Area management and comply with the site’s rules.

The corollary of this feature is that the Act cannot be used to protect a WH site

unless the people with rights and interests in that area (the Landowners) agree.

Ensuring that they have sufficient incentive to support the establishment of a

Protected Area may be challenging, given the restrictions that the law will place

on their activities and the limited development opportunities that exist on many

islands. Implementing the Landowner consent provisions prescribed in the PA

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Regulations may also prove difficult, particularly if they are inconsistent with

customary land tenure system and decision-making processes that apply in the

area. Local people may also need to be provided with training and resources

before they can effectively fulfil the governance and enforcement roles available

to them under the PA Act.

4. It is an appropriate response to the legally plural nature of Solomon Islands

The PA Act regime reflects the legally plural nature of Solomon Islands, and the

overlap between Protected Area regulation and customary laws. Importantly,

customary laws can form the basis of the rules in the Protected Area’s

management plan, and a customary governance body can be appointed as the site’s

management committee. This feature of the regime may encourage the

continuation of customary practices, as well as enabling the development of a

management plan and governance structure that is understood and respected by

the local people. However, the impact of the incorporation of customary laws into

a management plan needs to be considered, to ensure that the PA Act does not

weaken customary heritage protection. In addition, when appointing the

management committee and rangers, the relationship between the governance and

enforcement provisions of the PA Act regime and the customary system must be

taken into account.

This chapter has shown that the declaration of East Rennell as a Protected Area could

contribute to the site’s conservation. However, it raises several legal and practical issues

that could impede the PA Act’s effectiveness. The SIG, the East Rennellese and any other

organisations involved with implementing the Act at East Rennell should investigate

these issues further, if and when a Protected Area application is prepared for that site. It

also must be recognised that even if East Rennell is declared a Protected Area, the PA Act

will not provide protection against all the threats to the site’s OUV. The Act is therefore

only one of the legal measures required to ensure the long-term conservation of the site.

Importantly, legislation concerning resource harvesting, extractive industries and

biosecurity (analysed in chapter 7) will remain relevant notwithstanding the site’s

declaration as a Protected Area.

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Part 4

Conclusions and Recommendations

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Chapter 9: Strengthening the protection of World Heritage in Solomon Islands and other Pacific Island States

9.1 Introduction

This research explored the opportunities and challenges for the protection of World

Heritage (WH) in Solomon Islands by analysing the implementation of the World

Heritage Convention1 (the Convention) at two scales.

Firstly, these issues were considered at the Pacific level (Part 2). Chapter 2 set the scene

for this analysis by exploring the types of heritage sites prevalent in the Pacific, and the

key characteristics of Pacific Island States and their legal systems. Two key aspects of

the Convention regime were then critically analysed, namely the origins and interpretation

of the concept of WH (chapter 3), and obligations imposed by the treaty concerning the

protection of such places (chapter 4). The research demonstrated that many opportunities

and challenges stem from the nature of the region’s heritage, land tenure and legal

systems, while others are attributable to characteristics of the Convention and the

Committee’s approach to WH and its protection.

Secondly, the research critically analysed the implementation of the Convention in

Solomon Islands (Part 3), beginning with an assessment of the origins of the country’s

WH program and the inscription of East Rennell on the WH List (chapter 5). It found that

the circumstances surrounding these events help explain many of the current issues

associated with WH protection in Solomon Islands. The research then critically analysed

the legal protection of East Rennell under customary and State legal systems, finding that

the involvement of the East Rennellese people in the implementation of the Convention

is critical, but State intervention is also necessary to deal with the threats to the site’s

outstanding universal value (OUV) (chapter 6). State laws of particular relevance to these

threats were analysed, highlighting their potential to contribute to WH protection, but also

significant challenges impeding their effectiveness (chapters 7 and 8).



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The implementation of the Convention in Solomon Islands is influenced by a range of

economic, social, political and cultural issues. The country’s low economic growth,

political instability, governance issues, and the close connection between many

politicians and the extractive industries, all reduce the ability and willingness of the

Solomon Islands government (SIG) to protect WH. In addition, forces such as

globalisation, urbanisation and migration are degrading some customary legal systems,

and impeding the ability of community leaders to effectively manage their land and

resources. Addressing or mitigating these issues would require efforts at a much broader

scale than is possible or appropriate through the implementation of the Convention. This

research therefore did not set out to find ‘the solution’ to WH in the Solomon Islands,

which would not only be inappropriate for a single, foreign scholar, but also impossible,

given the nature and complexity of the challenges that exist. It did however aim to identify

the challenges and opportunities presented by the Convention regime for the protection

of Solomon Islands’ WH, as well as the features of that State which influence its ability

and willingness to conserve such places. From that analysis, the research sought to

ascertain if and how the protection of WH in Solomon Islands and other Pacific Island

States could be strengthened.

This chapter therefore identifies some options for addressing the key challenges

associated with protecting WH in the region. In accordance with the structure of the

thesis, these options are explored at two scales: at the Pacific scale (see 9.2) and in

Solomon Islands (see 9.3). It is acknowledged that these measures may only lead to

incremental improvements, and may require a substantial length of time to have effect.

Furthermore, identifying sources of funding and assistance to enable their implementation

will always be challenging. However, in time they could assist Pacific Island States and

others to implement the Convention, and therefore contribute to the conservation of the

region’s significant heritage places.

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9.2 Strengthening the protection of World Heritage in the Pacific

Island States

9.2.1 Bridging the disconnect between the global and local significance of Pacific


Chapter 3 explored the extent to which Pacific heritage may be considered WH. It found

that the scope of the Convention, encompassing both cultural and natural heritage, creates

substantial opportunities for the protection of Pacific places, where the distinction

between culture and nature is often not easily made. While for many years the Committee

interpreted the term ‘cultural heritage’ relatively narrowly, over time its interpretation has

broadened to allow a greater range of places to be recognised as WH. Given the

substantial challenges associated with nominating Pacific sites for WH listing, it may be

some time before this change leads to better Pacific representation on the WH List.

However, as demonstrated by Anita Smith, the criteria for WH listing, and the processes

for demonstrating that a site meets the WH threshold, are able to accommodate many

Pacific places.2 Importantly, there is scope for the listing of sites of significance because

of their association within the living traditions of Pacific Islanders, as evidenced by the

inclusion of Chief Roi Mata’s Domain and Nan Madol on the List. The inscription of

these sites (as well as the other listed WH sites in the region) was a significant

achievement particularly given that Pacific States have limited resources to dedicate to

heritage conservation.

An issue that must be considered when assessing the scope for Pacific heritage to be

recognised as WH is the potential for a disconnect to exist between the global and local

significance of the place, and its implications for the site’s protection. All places exist

within a hierarchy of spatial scales, and the value of a place may vary considerably at

different levels within that hierarchy.3 By defining WH to be heritage of ‘outstanding

universal value’ (OUV), the Convention ‘manufactures history and heritage at a global

scale’.4 However, the OUV of a WH site may not coincide with the local population’s

2 Anita Smith, ‘World Heritage and Outstanding Universal Value in the Pacific Islands’ (2015) 21(2) International Journal of

Heritage Studies 177, 187. 3 Brian Graham, Gregory J Ashworth and John E Tunbridge, A Geography of Heritage: Power, Culture and Economy (Arnold,

2000) 4. 4 Steve Brown, ‘Poetics and Politics: Bikini Atoll and World Heritage Listing’ in Sue O’Connor, Denis Byrne and Sally

Brockwell (eds), Transcending the Culture-Nature Divide in Cultural Heritage: Views from the Asia-Pacific Region (ANU E Press, 2012) 35, 48.

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view of why the place is significant.5 While the potential for such a disconnect exists at

WH sites around the world, its implications may be more significant in regions such as

the Pacific, where the involvement of local people in heritage protection is particularly

critical.

This issue is relevant to both cultural and natural WH sites. Many of the listed cultural

WH sites in the Pacific have been recognised as having OUV as ‘expressions of a global

narrative’6 rather than because of the values attributed to them by Pacific islanders.

Similarly, the two listed natural WH sites in the region7 were listed because of their

outstanding environmental features as opposed to their local significance. Indeed, as few

natural environments in the Pacific do not also have cultural significance, a variation

between the global and local value of natural WH sites in the region will be common.

UNESCO’s management manuals state that a WH site should be managed to conserve all

its heritage values, not just those that give the site OUV.8 However, in practice the

Committee is most concerned about the preservation of a WH site’s OUV. Consequently,

at East Rennell for example, the Committee’s focus is on the preservation of the site’s

forest and marine ecosystems, while the East Rennellese people are more concerned about

conserving their cultural identity. This situation is not conducive to the creation of a

cooperative approach to WH protection.

This thesis does not argue against the listing of natural WH sites in the Pacific region.

Many such places would not qualify as cultural or mixed sites, so to preclude their listing

as natural sites would significantly reduce the potential for the Convention to be utilised

in the region. It does however advocate for this issue to be explored when sites are being

considered for nomination, including investigating whether it will present challenges for

the site’s protection and, if so, how those challenges can be minimised.

5 See, eg, William Logan, ‘Cultural Diversity, Cultural Heritage and Human Rights: Towards Heritage Management as Human

Rights-Based Cultural Practice’ (2012) 18(3) International Journal of Heritage Studies 231, 237-239; Naomi Deegan, ‘The Local-Global Nexus in the Politics of World Heritage: Space for Community Development?’ in Marie-Theres Albert, Marielle Richon, Marie José Viñals and Andrea Witcomb (eds), Community Development through World Heritage, World Heritage Papers 31 (UNESCO, 2012) 77, 80.

6 Smith, above n 2. 7 East Rennell in Solomon Islands and the Phoenix Islands Protected Area in Kiribati. 8 See, eg, UNESCO et al, Managing Natural World Heritage, World Heritage Resource Manual (UNESCO, 2012) 37.

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Successful WH management often requires that conflicting interests at different levels be

reconciled.9 Deegan refers to this as finding the local-global nexus, ‘where forces from

diverging dimensions of scale…interconnect and interpenetrate’.10 The disconnect

between the global and local significance of East Rennell has manifested itself in

significant disenchantment among the local population concerning WH, impeding its

protection under both customary and State law. In this context, mechanisms for

strengthening WH protection must involve finding and capitalising the local-global

nexus. At East Rennell this will likely require broadening heritage conservation efforts to

encompass the preservation of the values of significance to the East Rennellese, and

supporting them to improve their livelihoods (see 9.3.3 for further discussion).

9.2.2 Achieving sustainable development and respecting the rights and roles of

local communities in the protection of Pacific World Heritage

While the Convention gives State parties discretion to adopt legal measures appropriate

to their circumstances, as explored in chapter 4, for many years the Committee favoured

a ‘fortress’ style approach to WH protection, which is often inappropriate in the Pacific.

In recent years however, the Committee’s views on the conservation of WH have evolved.

An important milestone in this evolution was the Committee’s resolution that rights

recognised under the United Nations Declaration on the Rights of Indigenous People11

(UNDRIP) must be respected in the implementation of the Convention. The recent

adoption of the WH Sustainable Development Policy by the General Assembly of State

parties12 (which followed the endorsement of a similar document by the Committee13)

was also significant, as it demonstrated broad acknowledgement of the need to pursue

WH protection through the framework of sustainable development. While these and other

developments evidence the acceptance of an approach to heritage protection that may be

appropriate in the Pacific, further work is required to translate them into practice.

9 Rick van der Ploeg, ‘Welcome Address by the Chair of the conference’ in Eléonore de Merode, Rieks Smeets and Carol

Westrik (eds), Linking Universal and Local Values: Managing a Sustainable Future for World Heritage, World Heritage Papers 13 (UNESCO, 2004) 24, 24.

10 Deegan, above n 5, 81. 11 United Nations Declaration on the Rights of Indigenous Peoples, GA Res 61/295, UN GAOR, 61st sess, 107th plen mtg, Supp

No 49, UN Doc A/RES/61/295 (13 September 2007). 12 Policy for the Integration of a Sustainable Development Perspective into the Processes of the World Heritage Convention,

WHC GA Res 20 GA 13, 20th sess, UN Doc WHC-15/20.GA/15 (20 November 2015) 7. 13 WHC Res 39 COM 5D, WHC 39th sess, UN Doc WHC-15/39.COM/19 (8 July 2015) 7; World Heritage and Sustainable

Development, WHC 39th sess, UN Doc WHC-15/39.COM/5B (15 May 2015) annex.

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The Committee could assist with this by amending the Operational Guidelines for the

Implementation of the World Heritage Convention (the ‘Operational Guidelines’)14 to

fully reflect the modern approach to heritage protection. For example, while the

Operational Guidelines note that WH sites may be subject to sustainable use, several

provisions refer to the goal of WH protection being solely the preservation of the site’s

OUV. They therefore fall short of the call in the Sustainable Development Policy for State

parties to find an appropriate balance between conservation, sustainability and

development, so that WH protection activities can contribute to the development and

quality of life of communities.15 The Operational Guidelines also do not guarantee

compliance with UNDRIP, as States are merely encouraged, not required, to involve local

communities in the preparation of site nominations and the protection of WH sites.

In 2011, the Committee adopted a four-year cycle for the amendment of the Operational

Guidelines,16 with the next revision due in 2019.17 Prior to that time, an analysis of the

Operational Guidelines should be undertaken to ascertain the amendments required to

align them with the modern principles of heritage protection. Achieving this will likely

require a continuous process of review and revision, so that emerging issues can be

addressed as they arise. The Committee must then ensure that its resolutions concerning

specific WH sites actually reflect these principles (discussed further at 9.3.1).

While the Committee’s approach to WH protection is important, ultimately however it is

the State parties and others involved with designing and implementing heritage protection

measures that determine how WH is protected. Strategic documents regarding WH in the

Pacific indicate that States in that region clearly recognise the links between heritage

protection and development, and the need for local communities to play a central role in

the implementation of the Convention.18 The challenge lies in identify mechanisms that

enable this to be achieved in practice. As this research into East Rennell demonstrated,

this can be very difficult. There is a continuing need to explore methods of conserving

14 UNESCO, Operational Guidelines for the Implementation of the World Heritage Convention, UN Doc WHC.16/01 (26

October 2016) (‘Operational Guidelines 2016’). 15 Policy for the Integration of a Sustainable Development Perspective into the Processes of the World Heritage Convention,

WHC GA Res 20 GA 13, 20th sess, UN Doc WHC-15/20.GA/15 (20 November 2015) 7, para 1. 16 WHC Res 35 COM 12B, WHC 35th sess, UN Doc WHC-11/35.COM/20 (7 July 2011) 266. 17 The last review of the Operational Guidelines was done in 2015. However, amendments were made in 2016 after the review

of certain provisions of the Guidelines on an exceptional basis. 18 See, eg, Presentation of the World Heritage Programme for the Pacific, WHC 31st sess, UN Doc WHC-07/31.COM/11C (10

May 2007) annex I (Appeal to the World Heritage Committee from the Pacific Island State Parties) particularly paras 7-8, 13; Pacific World Heritage Action Plan 2016 – 2020 (2016) preamble paras 1, 6.

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heritage that respect the rights, needs and aspirations of local communities (discussed

further at 9.3.3).

9.2.3 Improving our understanding of customary protection in the context of the

World Heritage Convention

The Committee’s decision that sites protected through customary mechanisms could

qualify for WH listing (discussed in chapter 4) was an important milestone in the

evolution of the Convention regime for Pacific States, where much land is under

customary tenure, and land and resources have been governed and managed by

Indigenous people for millennia. Indeed, that decision enabled the listing of East Rennell,

which at the time had little protection under State law. As explained in chapter 5 however,

perhaps reflecting the Committee’s strong desire to list a Pacific site, it appears that East

Rennell was included in the WH List despite little scrutiny of the site’s customary

protection, and without a clear understanding of the relationship between customary law,

the proposed management plan and State legislation. This finding helps explain some of

the current challenges being encountered in the protection of the site.

This thesis does not contend that East Rennell should not have been listed. Such an

argument would be difficult to justify, given the site’s heritage significance. Furthermore,

the long-term implications of the site’s listing for the preservation of the island and the

development of the Convention regime in the Pacific are unknown. Additionally, a debate

over whether the site should have been listed will not assist with its conservation. This

thesis does however argue that when a place is nominated pursuant to customary

protection, the scope and strength of that protection, and its relationship to any proposed

management plan and State legislation should be thoroughly examined. Key issues that

should be considered are identified below.

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(A) The scope of customary laws, and the structure and strength of customary

governance systems

If a site is to be nominated for WH listing based on customary protection, the nomination

should be preceded by research into the applicable customary legal system/s.19 The scope

of customary laws must be assessed with reference to the WH values of the site, as it

cannot be assumed that custom is consistent with heritage conservation. For example, as

noted in chapter 2, in some parts of the Pacific the motivation behind the development of

customary laws was the sustainable use of resources, however in other places population

densities were too low for a conservation ethic to develop. Customary laws also need to

be examined in light of the current and foreseeable threats to the site, to consider whether

additional protection measures will be required and, if so, how they will work alongside

customary protection.

Customary governance must also be researched, to understand who has authority to make

decisions and how those decisions are made. Most customary governance bodies in the

Pacific have changed substantially since pre-colonial times, and many are weakening

under modern pressures such as the introduction of the cash economy, migration and

globalisation. Therefore, their contemporary role needs to be assessed, including their

legitimacy among the landowning communities and the extent to which they can ensure

compliance with custom. Such a study may reveal that the WH values of the area are

being well managed, and there is little need for intervention. Alternatively, it may reveal

that customary governance needs to be strengthened and/or supplemented (for example,

by the establishment of another local governance structure) in order to achieve WH

protection. If a new structure is to be established, its relationship to any customary

governance bodies needs to be well understood so that all have clear mandates and can

work cooperatively together (discussed further at 9.3.3(E)).

19 The need to research and document customary legal systems before assuming they will form part of an effective heritage or

resource management regime has been recognised elsewhere: see, eg, Joseph Eboreime, ‘Nigeria’s Customary Laws and Practices in the Protection of Cultural Heritage with Special Reference to the Benin Kingdom’ in Webber Ndoro and Gilbert Pwiti (eds), Legal Frameworks for the Protection of Immoveable Cultural Heritage in Africa, ICCROM Conservation Studies 5 (ICCROM, 2005) 9, 11; Shankar Aswani, ‘Customary Sea Tenure in Oceania as a Case of Rights-Based Fishery Management: Does it Work?’ (2005) 15 Reviews in Fish Biology and Fisheries 285, 304-305.

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(B) Boundaries and buffer zones

The implications of the boundary provisions of the Operational Guidelines for customary

protection must be assessed. These provisions require the boundaries of a WH site to be

drawn so that all attributes necessary to convey the site’s OUV are within the site.20 As

customary land tenure in some parts of the Pacific (particularly Melanesia) is highly

fragmented, compliance with this requirement may result in the WH site encompassing

land owned by more than one group. This may create issues concerning coordination of

the different customary legal systems. In some cases, it may be appropriate to advocate

for the boundary requirements to be relaxed, to allow the delineation of a WH site that

can be effectively protected under one customary legal system, rather than creating a large

site under fragmented ownership.

The Operational Guidelines also state that a buffer zone around a WH site should be

established where necessary to protect the site.21 The feasibility of creating such a buffer

zone needs to be assessed, particularly if the land surrounding the site is owned by a

different customary group. For example, the owners of the buffer zone may not accept

restrictions on the use and development of their land, particularly if they receive no

tangible benefits from the WH listing.

A degree of flexibility is required in the application of the boundary and buffer zone

provisions to sites under customary protection. However, the consequences of any non-

compliance also have to be considered. As this research showed, East Rennell did not

strictly comply with the boundary requirements for listing because the forests across the

island are intrinsically linked. In addition, no buffer zone has been established, possibly

because of land tenure issues. Today, many of the threats to the WH values of the site

arise from activities in West Rennell, which the East Rennellese have little power to

control, and which the SIG has been unwilling to strongly regulate. As such, while the

boundary and buffer zone requirements must be applied flexibly for sites under customary

protection, those issues and their implications for WH protection should not be ignored.

20 Operational Guidelines 2016, UN Doc WHC.16/01, paras 100-102. 21 Ibid paras 104-107.

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(C) Management and protection of World Heritage sites under customary tenure

Customary protection will rarely, in itself, be sufficient to protect a WH site against all

modern threats. Consequently, when a site under customary protection is nominated for

WH listing, the extent to which that protection needs to be strengthened and supplemented

through other mechanisms, such as a management plan and/or State legislation, must be

determined. The relationship between such mechanisms and custom also has to be clearly

understood. Numerous issues concerning such relationships were revealed through the

analysis in chapters 6 – 8. For example, how will any inconsistencies between the

management plan provisions and customary law be resolved? Will State legislation

incorporate aspects of custom, and if so will that affect (positively or negatively)

compliance with those customs? If a new governance body will be established, what will

be the composition of that body? And how will its jurisdiction relate to that of customary

governance bodies? Understanding issues such as these is crucial if the additional

management measures are to be effective.

The role that the State is likely to play in the protection of the site also needs to be

examined. For example, this research demonstrated a reluctance among people working

within SIG to implement any measures that were not widely supported by the East

Rennellese people, reflecting their reverence for the rights of customary owners, and

recognition of the peoples’ reliance on the land and its resources for their livelihoods. It

therefore cannot be assumed that a State party will be willing to do all it takes to strictly

protect the OUV of a site under customary tenure, despite its Convention obligations.

Greater scrutiny of the issues referred to in (A) – (C) above at the nomination stage could

have two key benefits. Firstly, it could temper the expectations of the Advisory Bodies

and the Committee (collectively referred to here as the Convention bodies) concerning

the level of protection that the site will enjoy. Their enthusiasm to support customary

protection should not translate into an assumption that customary landowners or State

parties are willing and able to protect sites under customary tenure to the same standard

as those under State ownership and control. A thorough assessment of customary

protection would provide a more realistic picture of the strength of the site’s protection

regime, allowing all stakeholders to agree upon feasible conservation objectives.

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Secondly, it might help the Pacific State parties and the Convention bodies to anticipate

and address issues concerning the site’s protection.

The inclusion of provisions in the Operational Guidelines concerning customary

protection might also be beneficial. The Operational Guidelines already detail common

elements of an effective WH site management plan,22 which are used by State parties

when designing management regimes, and by the Convention bodies when assessing site

nominations. Equivalent provisions setting out key issues relevant to an assessment of the

customary protection of a nominated site could also be included in the Operational

Guidelines. Clearly, the provisions would have to be sufficiently broad and flexible to

encompass the huge variety of customary legal systems and WH sites that exist around

the world. However, appropriately drafted they could serve as a useful starting point for

assessing customary protection in the context of the Convention.

9.2.4 Ensuring the Pacific voice continues to be heard

Over the past three decades, the Committee has responded to changes in the international

community’s views concerning aspects of the Convention, which has led to the regime

evolving (chapters 3 and 4). This evolutionary process will no doubt continue and as it

does the Convention bodies must ensure that the needs and aspirations of Pacific Island

states continue to be taken account. Pacific representation on the Committee would be

beneficial, but it is uncertain whether any Pacific Island State has the capacity, resources

and willingness to effectively serve in that role. These States should however be

encouraged and supported to engage with the Convention regime in other ways.

It is often difficult for Pacific Island States to participate in WH Committee meetings,

particularly those held in the northern hemisphere, because of the financial and human

resources that attendance requires. Regional WH meetings are therefore critical as they

provide Pacific Islanders with an opportunity to discuss common issues, develop strategic

plans,23 and formulate shared visions which can be articulated to the Convention bodies.24

Mechanisms to allow Pacific Island States to participate in Committee meetings without

22 Ibid paras 108-118. 23 For example, the Pacific World Heritage Action Plan 2016 – 2020 (2016). 24 For example, the Pacific Appeal: Presentation of the World Heritage Programme for the Pacific, WHC 31st sess, UN Doc

WHC-07/31.COM/11C (10 May 2007) annex I (Appeal to the World Heritage Committee from the Pacific Island State Parties).

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having to physically attend could also be explored. For example, there might be potential

for a regional meeting to be held simultaneously with the Committee meeting, with a

video link between the two venues.

The preparation of State party reports can also be difficult for Pacific Island States, which

is understandable but regrettable. These reports are not only a way for State parties to

report on their compliance with the Convention and the Committee’s resolutions, they

can also be used to inform the Convention bodies of the State party’s broader views

concerning WH. If a State party has no input into the Committee’s decision-making, there

is a risk that a wide gulf between the respective positions of the Committee and the State

will develop (as exists in relation to East Rennell – see 9.3.1). Supporting Pacific Island

States to actively engage with the Convention regime may help ensure that as it evolves

it becomes a more useful mechanism for the protection of the region’s heritage.

More broadly, the development of a consortium of Pacific Island States should be

considered. This approach has proved successful in other contexts. A notable example is

the Alliance of Small Island States (AOSIS), an intergovernmental organisation of low-

lying coastal and island countries that functions as an ‘ad hoc lobby and negotiating

voice’.25 AOSIS has been relatively successful in articulating the views of member

nations to the international community, particularly on the issue of global warming. A

formal consortium of Pacific Island States, (or a larger organisation encompassing other

nations facing similar challenges, such as the Small Island Developing States), could

allow these countries to have more input into the implementation and evolution of the

Convention regime.

9.2.5 Supporting the protection of World Heritage in the Pacific

The Global Strategy for a Representative, Balanced and Credible World Heritage List

was adopted by the Committee in 1994 on the basis that maintaining the credibility of the

List was dependent on it better reflecting the diversity of heritage places around the world.

It therefore supported activities designed to rectify imbalances in the List, including

encouraging States from under-represented regions to nominate sites, and broadening the

interpretation of the notion of cultural WH. However, to date less attention has been paid

25 Alliance of Small Island States, About AOSIS <http://aosis.org/about/>.

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to improving WH conservation, including addressing the issue of non-compliance with

WH Committee decisions.26 Consequently, Anderson has recently argued that:

To maintain credibility, a shift in focus from quantity to quality must take place. This means that sites put forward for nomination should be clearly identified as gaps in the World Heritage List and receive advice from the earliest stages on how to meet the standards of the Convention. It also means that the management of existing World Heritage sites should be central to the Convention’s focus.27

The increased focus on WH protection advocated for by Anderson must occur in the

Pacific region. Unless the challenges associated with the conservation of Pacific WH sites

are addressed, not only will such places remain at risk of being damaged or destroyed,

but the representation of the region on the WH List is unlikely to substantially increase.

Further work is required to help Pacific Island States address the many challenges

associated with protecting WH, some of which were identified through this research.

The Pacific World Heritage Action Plan 2016-2020 aims to ensure that Pacific heritage

places are effectively protected and managed, and specifies regional- and national-level

actions designed to help meet that goal. Regional actions include capacity building

programs,28 establishing a cultural heritage database29 and a register of cultural heritage

legal experts,30 and preparing model management plans.31 National activities vary from

State to State, but include increasing cooperation between relevant Ministries, capacity

building, information sharing, and increasing the effectiveness and coordination of

heritage policy and legislation.32 If and how these proposed actions will be implemented

in practice remains to be seen. Drawing upon the Action Plan and the findings of this

research, some observations about supporting the protection of Pacific WH are made

below.

(A) Creating a regional database for Pacific World Heritage and a register of

heritage law experts

Academic scholarship and practical experience concerning the protection of Pacific WH

is amassing (albeit slowly), so the creation of a comprehensive repository for such

26 Reports of the Advisory Bodies, WHC 39th sess, UN Doc WHC-15/39.COM/5B (15 May 2015) para 63. 27 Inger Anderson, ‘Today Defines Tomorrow: World Heritage as Litmus Test for Action on Agreements’ (2016) 79 World

Heritage 4, 9. 28 Pacific World Heritage Action Plan 2016-2020 (2016) 5, 10. 29 Ibid 5, 9. 30 Ibid 5, 10. 31 Ibid 5. 11. 32 Ibid 7.

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information would be beneficial. The logical host of the database would be the Pacific

Heritage Hub, a WH facility for Pacific Island States established in 2013 at the University

of the South Pacific.33 The scope of the proposal in the Action Plan should be expanded

from cultural heritage sites to include all WH places. Similarly, the proposal to create a

register of cultural heritage legal experts could be expanded to include people with

expertise in natural WH sites.

Importantly, the database should be sufficiently broad to encompass information

concerning laws relevant to WH protection. Currently, there is no central location where

such information can be found. While UNESCO hosts a database of cultural heritage

laws,34 it is incomplete.35 Some Pacific legislation can be obtained through Paclii,36 but

that site is also not always up to date.37 Furthermore, the Paclii site is a database of

legislation on all topics, potentially making it difficult to find heritage protection laws.

The database proposed in the Action Plan will be more valuable if it encompasses all key

legislation relevant to WH protection, not simply laws specifically aimed at heritage

conservation. Compiling the database may necessitate detailed assessments of the

relevant laws in the Pacific nations (such as that undertaken for Solomon Islands as part

of this research). Including links to information about the implementation of the relevant

laws (such as the relationship of the laws to custom, and enforcement issues) would also

enhance the usefulness of the database.

(B) Strengthening heritage policy and legislation

The Action Plan notes the need to improve the effectiveness and coordination of heritage

policy and legislation, but does not specify how this will be achieved. Three key issues

relevant to the design of programs to strengthen heritage policy and legislation are

outlined below:

33 Pacific Heritage Hub, Who We Are <http://www.pacificheritagehub.org/about-us/who-we-are/>. 34 UNESCO, UNESCO Database of National Cultural Heritage Laws <http://www.unesco.org/culture/natlaws/index.php>. 35 Of the Pacific Island States, only Fiji, Niue, Palau, Samoa and Tonga are covered. 36 Pacific Islands Legal Information Institute <http://www.paclii.org>. 37 For example, the Phoenix Islands Protected Area Regulations 2008 (Palau) are not on the Paclii website.

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(B.I) Supporting the development of laws to protect World Heritage versus heritage

sites more broadly

The extent to which the protection of WH should be prioritised over other sites is a

relevant issue in all countries, but is more pertinent in a developing country where

resources are so limited. The importance of this issue in Africa, for example, has been

well recognised. Breen has stated:

World Heritage inscription lays undue emphasis on single sites in a national context, diverts resources and expertise from the broader context of state services and national heritage provision.38

Similarly, Mumma has said:

There is a danger that, by prioritizing action in support of those places at the highest level, elements of the wider resources may not be properly considered and this may result in detriment to the heritage.39

As in Africa, WH protection stretches the very limited resources of Pacific Island States.

While WH sites have been internationally recognised as having OUV, unlisted sites may

be just as significant and thus warrant the same level of protection. Thus, whether States

should develop legislation that applies solely to WH sites or to heritage places more

broadly needs to be considered.

This question needs to be answered on a case by case basis. Some WH sites may be

sufficiently unique to justify specific legislation. For example, Kiribati’s listed WH site,

the Phoenix Islands Protected Area, was established and is protected under the Phoenix

Islands Protected Area Regulations 2008 (Kiribati).40 That WH site is the largest marine

protected area in the Pacific, and hosts a range of marine environments and incredible

biodiversity. Its unique characteristics arguably warrant site-specific legislation.41 In

contrast, it is argued here that East Rennell is not so dissimilar from other places in

Solomon Islands as to justify site-specific legislation, at least not at the national level. It

was therefore reasonable for SIG to enact the Protected Areas Act 2010 (the PA Act)

rather than a World Heritage Protection Act as envisaged in East Rennell’s nomination

dossier.42

38 Colin Breen, ‘Advocacy, International Development and World Heritage Sites in Sub-Saharan Africa’ (2007) 39(3) World

Archaeology 355, 365. 39 Albert Mumma, ‘Framework for Legislation on Immoveable Cultural Heritage in Africa’ in Webber Ndoro, Albert Mumma

and George Abungu (eds), Cultural Heritage and the Law: Protecting Immoveable Heritage in English-Speaking Countries of Sub-Saharan Africa, ICCROM Conservation Studies 8 (ICCROM, 2008) 97, 98.

40 Made under the Environment Act 1999 (Kiribati). 41 This is also the approach taken into relation to several WH sites in Australia, such as the Great Barrier Reef Marine Park. 42 One reason why the World Heritage Protection Act was not pursued in Solomon Islands is because it would only apply to WH

sites, as opposed to important heritage places more broadly: Interview with an officer in the Ministry of Education, who was

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The corollary is that the PA Act is not specifically designed for East Rennell, and as

explained in chapter 8 there are many issues that require careful consideration if and when

the Act is implemented there (see 9.3.2(D) and 9.3.3(E) below). Furthermore, while the

PA Act could be used to help conserve the OUV of East Rennell, that Act does not address

all aspects of the implementation of the WH Convention. Specific WH legislation could

provide a broader framework for decision-making concerning potential and existing WH

sites than exists under other laws. For example, it could address the nomination of sites

for WH listing (including landowner consultation and/or consent requirements), site

management plans (including the process for their development, review and approval),

administrative decision-making concerning WH matters, the financing of WH protection,

and income sharing (for example from tourism). Importantly, such legislation could be

drafted to apply to sites with both cultural and natural heritage values, which may not fit

well under existing protected area or cultural heritage legislation. These benefits may

make specific WH legislation the appropriate choice for some Pacific Island States, if

they are willing to commit the human and financial resources needed to implement and

administer such a law.

(B.II) The development of model World Heritage protection legislation for the Pacific

The Action Plan supports the development of model management plans for WH sites and

places on Tentative Lists,43 but makes no reference to model laws. The merits of

developing model laws for the protection of Pacific WH should however be investigated.

A Model for a National Act on the Protection of Cultural Heritage already exists,44 but it

is principally concerned with underwater and moveable heritage, and is global in scope.

A regional model would be preferable, as it could be better tailored to the Pacific context.

A model law for the protection of cultural heritage has already been developed for the

Caribbean, and lessons could potentially be learned from that process for the Pacific.

Furthermore, the Pacific region already has a Model Law for the Protection of Traditional

formerly the focal point for World Heritage within the Solomon Islands National Commission for UNESCO (Honiara, 28 July 2013).

43 Pacific World Heritage Action Plan 2016-2020 (2016) 11. 44 UNESCO, Model for a National Act on the Protection of Cultural Heritage (2013)

<http://www.unesco.org/new/fileadmin/MULTIMEDIA/HQ/CLT/pdf/UNESCO_MODEL_UNDERWATER_ACT_2013.pdf>.

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Ecological Knowledge, Innovations and Practices.45 The experiences of Pacific Island

States in utilising that document could be drawn upon in the development of any model

for the protection of WH.

Model laws have many benefits, including allowing for the pooling of expertise in

legislative drafting. This is particularly pertinent in the Pacific where the number of

people with the requisite skills is somewhat limited.46 There is however a risk that model

laws can fail to accommodate the diverse characteristics of the relevant States. This risk

is exacerbated in the WH context by the diversity of Pacific heritage, which means that

no one piece of legislation will be appropriate for all sites. Notwithstanding this, the

development of a series of options for WH protection legislation may still be useful. The

drafting process would have to be led by regional Pacific organisations, representatives

of the Pacific Island States and others who would be involved with its implementation, to

ensure that the model enjoys wide support and is appropriate for the Pacific context. In

particular, the model would need to reflect the fact that customary legal systems vary

significantly across the region and, in some cases, within States.

(B.III) Lessons from other jurisdictions

This research focused inwards on Solomon Islands, to explore the full range of issues

influencing WH conservation in that State. There is however potential for Solomon

Islands to benefit from lessons learned from other jurisdictions. As there are few listed

WH sites in the Pacific and they vary significantly, the scope of any such investigation

should encompass other places of heritage significance within the region. Comparisons

with WH sites outside the regions could also be beneficial (particularly sites under

customary tenure, and those in legally plural Small Island Developing States such as in

the Caribbean States). Lessons might also be learned from the implementation of other

treaties such as the Convention on Biological Diversity in both the Pacific and other

regions. Careful analysis would however be required before it could be assumed that

experiences in other regions are relevant to the Pacific.

45 Model Law for the Protection of Traditional Ecological Knowledge, Innovations and Practices

<http://www.grain.org/system/old/brl_files/brl-model-law-pacific-en.pdf>. 46 Craig Forrest and Jennifer Corrin, ‘A Model Law to Implement the Convention on the Protection of the Underwater Cultural

Heritage and its Possible Application in Plural Legal Regimes in Pacific Small Island States: A Case Study of Solomon Islands’ (Paper presented at Solomon Islands National University Workshop, Honiara, December 2014) <http://www.themua.org/collections/files/original/602a7962da5dd01ceafc413b8ec2d8fe.pdf> 4.

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(C) Strengthening customary protection of Pacific World Heritage sites

The Action Plan aims to ensure that Pacific communities are actively engaged in

conserving their heritage,47 and promotes activities such as awareness raising among

communities,48 and capacity building for local heritage management.49 Interestingly

however, the Action Plan makes little reference to measures specifically designed to

strengthen customary protection of WH.50 The only reference is in a national-level

activity proposed by Solomon Islands and Papua New Guinea, which is ‘promoting

respect for customary practices and decision making in heritage protection and

management’.51 The Action Plan does not specify how this will be achieved.

The Action Plan reinforces that the protection of Pacific heritage ‘must be based on

respect for and understanding and maintenance of the traditional cultural practices,

indigenous knowledge and systems of land and sea tenure’ in the region.52 Yet, in many

parts of the region, such practices and systems are weakening. Therefore, the absence of

specific activities in the Action Plan for strengthening customary protection appears to be

a significant omission. As noted in 9.2.3, there is still a need for greater understanding

about customary protection in the context of WH. Further work to assess if and how

Pacific islanders can be supported to strengthen customary protection of WH is also

warranted (discussed further in 9.3.3).

47 Pacific World Heritage Action Plan 2016-2020 (2016) 4. 48 Ibid 7. 49 Ibid 5. 50 The Pacific World Heritage Action Plan 2016-2020 does refer to the need for awareness raising and capacity building in

communities (at 5), which is arguably broad enough to encompass strengthening customary protection. However, it contains no specific references to strategies to strengthen customary protection.

51 Ibid 7. 52 Ibid 1.

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9.3 Strengthening the protection of World Heritage in Solomon

Islands

9.3.1 Improving cooperation between Solomon Islands and the Convention bodies

in the protection of World Heritage

The principle of international cooperation underpins the Convention regime. However,

the extent to which a State party and others work cooperatively will be influenced by

whether they share a common vision for how a site is to be protected. This research

demonstrated there is significant variation between the actions that the Convention bodies

consider are necessary to protect the OUV of East Rennell, and the SIG’s approach to

WH conservation. It is argued here that if cooperation between the State party and the

Convention bodies is to improve, the chasm between their respective approaches to WH

protection must be narrowed. In part this will require the Committee to ensure its

decisions concerning East Rennell reflect its policies (see (A)). It will also require SIG to

play a greater role in WH protection, which of course will be challenging given the social,

political and economic issues influencing the implementation of the Convention in that

country (see (B)).

(A) The Convention bodies’ approach to World Heritage protection in Solomon

Islands

While the Committee now accepts that heritage protection should be pursued through the

framework of sustainable development, to date that has not been strongly reflected in its

resolutions concerning East Rennell. As noted in chapter 6, it has repeatedly requested

that Solomon Islands address the threats to the site by banning logging and mining on the

island, regulating the taking of species, developing a new management plan and

implementing heritage protection legislation. There has been little acknowledgement in

its decisions of the critical role of local people in decision-making concerning WH

protection or their right to economic development. This may be contributing to the SIG

making little effort to comply with the Committee’s resolutions.

For example, in 2013 the Committee called upon Solomon Islands to apply the PA Act to

East Rennell ‘to ensure full and strict legal protection of the property’. This request fails

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to recognise an important feature of the Act, namely that a site cannot be declared as a

protected area under this law without landowner consent.53 That feature is arguably

consistent with the modern approach to conservation as it allows landowners to maintain

a high degree of control over the use and development of their land. The corollary is that

SIG cannot comply with the Committee’s request unless and until the East Rennellese

landowners agree (or it amends the PA Act). It is argued here that it would be more

appropriate, and more consistent with the WH Sustainable Development Policy, for the

Committee to request that Solomon Islands encourage and support the landowners to

apply for a protected area declaration. Such a request may engender more support among

SIG, because it accurately reflects the scope of its legal authority under the PA Act.

To date the Committee’s decisions have also not expressly recognised the intrinsic link

between local economic development and conservation at East Rennell. An exception to

this is the Committee’s 2016 decision, which was made shortly after the adoption of the

Sustainable Development Policy. Among other things, that decision encourages Solomon

Islands to ‘develop an Action Plan which would prioritise local communities and

alternative income generating mechanisms that derive benefits from the conservation of

the property’s Outstanding Universal Value (OUV)’. It is perhaps evidence that the

Committee is shifting towards an approach to the protection of East Rennell that more

strongly reflects the principles of sustainable development. If the gap between the

approaches of the Committee and the SIG to WH protection is to be narrowed, that shift

must continue.

(B) The Solomon Island government’s approach to World Heritage protection

The SIG’s lack of compliance with the Committee’s resolutions reflects the fact that WH

is a low priority in Solomon Islands. SIG initially became involved with WH at least

partly because of its desire to boost the country’s tourism industry (see chapter 5).

However, WH has not resulted in a substantial economic windfall for the government,

and in the face of political instability, governance issues, slow economic growth, and

considerable social challenges, SIG has dedicated few financial and human resources to

the implementation of the Convention.

53 Consent for the declaration of a Protected Area is actually required from the people with ‘rights and interests in the area’. The

term ‘landowner’ is used here to refer to this group of people. It is however acknowledged that that term over-simplifies the multi-layered nature of customary tenure systems. See 8.4 for analysis of this issue.

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The reverence that Solomon Islanders have for customary rights also influences the SIG’s

approach to WH protection. State parties to the Convention have an obligation to enact

the legal measures required to protect WH. The SIG has the power under its Constitution

to comply with this obligation, and its laws prevail over custom to the extent of any

inconsistency. However, in practice it is a fallacy to consider State law at the top of the

legal hierarchy. Many Solomon Islanders believe that customary landowners have

complete rights to their land, so the State has no authority to dictate how such land and

the resources on it are used. This perception helps explain why all people consulted for

this research indicated that the SIG’s role in the protection of East Rennell was to support

the landowners, rather than to dictate the conservation measures that should be

undertaken.

The SIG’s failure to prioritise WH may also reflect the nature of Solomon Islanders. In

other parts of the world, sites nominated for WH listing have often already been

‘reterritorialized from a local scale to the national and been interpreted as representations

of the nation and nationalism’.54 In such places, the inscription of a site on the WH List

may engender a sense of national pride, which translates into the site’s protection being

prioritised. In contrast, in many Pacific Island States (including Solomon Islands)

people’s main affiliation rests with their clan or tribe, as opposed to their nation. In the

absence of a strong sense of national unity, it is less likely that a place will gain national

significance, even if it is inscribed on the WH List. Consequently, the idea that East

Rennell warrants protection more than other places in Solomon Islands is not necessarily

one that resonates widely among Solomon Islanders.

It is unhelpful to advocate for the SIG to undertake conservation measures that are well

beyond its resource capacity, or those that fundamentally diverge from the views of

Solomon Islanders concerning their customary rights. That said, given the nature of the

OUV of East Rennell and the threats to it, SIG will have to play a greater role in the site’s

protection if the OUV is to be preserved, including through the application of State laws.

Herein lies the challenge, as any restrictions that SIG imposes on the use of the WH site

or surrounding land may infringe on customary rights. Identifying approaches that

achieve an appropriate balance between heritage conservation and all aspects of

54 Deegan, above n 5, 80.

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sustainable development, including respecting the rights of the East Rennellese people

and facilitating their economic development, will be an ongoing challenge.

9.3.2 Strengthening the protection of East Rennell under State law

Although the nomination dossier for East Rennell stated that a World Heritage Protection

Act would be enacted, that never occurred. However, as demonstrated in chapters 7 and

8, legislation exists that could be used to address some of the threats to the site, including

the over-harvesting of species, extractive industries and invasive species. This finding is

significant, because substantial legislative reform in the short term is unlikely. Key

findings of this research are summarised below, along with options for strengthening the

protection of the site.

(A) Laws regulating the over-harvesting of species

The taking of marine species under threat at the WH site (including coconut crabs, beche

de mer and trochus) was until very recently regulated under the Fisheries Regulations

1972. The Minister for Fisheries and the Director for Fisheries have ample powers under

the Fisheries Management Act 2015 to re-introduce these restrictions. Ensuring

compliance with laws such as these is however very difficult, in part due to the geography

of the country.

Substantially increasing the resources available to the relevant Ministries to monitor and

enforce the laws would be beneficial, but is unlikely in the near future. A feasible

initiative that could be helpful is an assessment of the harvesting that is occurring at East

Rennell, to ascertain what species are being taken, by whom, using what methods, and

for what purpose. That information could help inform the appropriate management

response, and ensure that the limited resources available for monitoring and enforcement

are utilised efficiently. The compilation of consolidated and up to date versions of all

relevant laws, and the creation and distribution of copies of the rules in a format readily

understandable by the East Rennellese people may also have some impact. The use of

such laws to protect East Rennell will however always be challenging, particularly given

their potential inconsistency with customary rights and the reliance of local people on the

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resources for their livelihoods. As such, the PA Act may be a more effective approach

(see (D) below).

(B) Laws regulating logging and mining

Neither the Forest Resources and Timber Utilisation Act (Cap. 40) (the FRTU Act) nor

the Mines and Minerals Act (Cap. 42) (the MM Act) refer to WH. However, the analysis

in chapter 7 demonstrated that the impact of a proposed operation on WH is a relevant

consideration in the determination of logging and mining approvals under these laws.

Therefore, the Commissioner for Forests and the Minister for Mines could refuse to

approve operations that would have an unacceptable impact on the OUV of East Rennell.

The Director of Environment could also refuse to grant a development consent under the

Environment Act 1998 on that basis. Alternatively, approvals for logging and mining

developments could be granted subject to conditions designed to mitigate their impacts

on heritage, although monitoring and enforcement would have to significantly improve

for such conditions to be effective. These decision-makers also have the power to halt

existing logging and mining operations if the operators are in breach of relevant laws or

conditions. Given the history of extractive industries in Solomon Islands, it is likely that

most if not all operators are in breach, so logging and mining occurring in West Rennell

could probably be lawfully halted.

These findings are significant because the Committee has repeatedly called upon

Solomon Islands to prevent logging and mining from impacting the OUV of East Rennell,

but SIG has contended on several occasions that it lacks the power to do so. They are also

important because the East Rennellese people have no power to stop these activities from

occurring in West Rennell, despite the impacts that they may have on their land.

Consequently, SIG must play a greater role in regulating extractive industries if the OUV

of East Rennell is to be protected against these threats.

The need for substantial reform of the regulation of extractive industries has been well

recognised elsewhere.55 Fundamental changes are required to stamp out corruption,

55 See, eg, Judith Bennett, Roots of Conflict in Solomon Islands - Though Much is Taken, Much Abides: Legacies of Tradition

and Colonialism, State, Society and Governance in Melanesia Discussion Paper (Australian National University, 2002); Judith Bennett, Pacific Forest: A History of Resource Control and Contest in Solomon Islands, c 1800 – 1997 (Brill Academic Publishers Inc, 2000); Judith Bennett, ‘Forestry, Public Land, and the Colonial Legacy in Solomon Islands’ (1995) 7(2) Contemporary Pacific 243; Daniel Gay (ed), Solomon Islands Diagnostic Trade Integration Study 2009 Report (Solomon

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minimise the environmental and social impacts of the industries, protect landowners’

rights, and ensure that the industries are sustainable (to the extent that that is possible).

While it is beyond the scope of this research to detail the full suite of reforms necessary

to ensure the strict regulation of these industries,56 this research did reveal some specific

changes that could contribute to WH protection.

Firstly, the amendment of the FRTU Act and the MM Act to make the impact of a logging

or mining proposal on heritage an express relevant consideration would be beneficial.

This change would reduce any ambiguity that exists concerning the scope of the powers

of the Commissioner for Forests and the Minister for Mines, which may make them more

likely to exercise those powers. The development of a national WH policy could also

assist, as it would raise the profile of WH among politicians and SIG officials, and further

reinforce that decision-makers must consider this issue when determining approval

applications. Secondly, the FRTU Act and the MM Act should be amended to confirm that

approvals cannot be granted over protected areas established under the PA Act, to ensure

consistency between the laws. Finally, the landowner consent provisions require

amendment (see 9.3.3(D) for discussion of this latter point).

It should also be recognised that while the IUCN and the Committee are clearly focused

on trying to ensure that East Rennell is protected against the impacts of logging and

mining, a recent report has suggested that the largest cleared patches of forest on the

island were caused by landowners clearing the land for agriculture.57 This practice

warrants further assessment. Future research could consider for example, the impacts of

the activity on WH values and measures to minimise impacts, such as encouraging the

avoidance of particularly environmentally sensitive areas. Developing feasible measures

would require a comprehensive understanding of the land tenure system, and the

livelihood activities undertaken by the East Rennellese people.

Islands Government, 2009); Tarcisius Tara Kabutaulaka, ‘Rumble in the Jungle: Land, Culture and (Un)sustainable Logging in Solomon Islands’ in Antony Hooper (ed), Culture and Sustainable Development in the Pacific (ANU E Press and Asia Pacific Press, 2005) 88; Siobhan McDonnell, Joseph Foukana and Alice Pollard, Building a Pathway for Successful Land Reform in Solomon Islands (2015); Graham Baines, Solomon Islands is Unprepared to Manage a Minerals-Based Economy, State, Society and Governance in Melanesia Discussion Paper 2015/6 (Australian National University, 2015); Tony Hughes and Ali Tuhanuku, Logging and Mining in Rennell: Lessons for Solomon Islands. Report to the World Bank and Solomon Islands Government (2015); Ian Frazer, ‘The Struggle for Control of Solomon Island Forests’ (1997) 9(1) Contemporary Pacific 39; Solomon Islands Office of the Auditor General, An Auditor-General’s Insights into Corruption in Solomon Islands Government, National Parliament Paper 48 (2007).

56 For recommendations concerning legislative amendment of forestry laws, see Ben Boer, Solomon Islands: Review of Environmental Law (SPREP, 1993), in particular 96-8.

57 International Centre on Space Technologies for Natural and Cultural Heritage, Report of the Technical Consultation Meeting on East Rennell World Heritage Site in Danger, Sanya, Hainan Province, China, 1 – 2 February 2016 (2016) 20-21.

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(C) Laws concerning invasive species

The Biosecurity Act 2013 provides the SIG with legal mechanisms to help control the

spread of invasive species in Solomon Islands. Among other things, it requires incoming

ships to obtain biosecurity clearance, and imposes an obligation on ship captains to

attempt to prevent animals from reaching the islands. If enforced, these requirements

could minimise the chance of further invasive species being introduced to Rennell. The

Act also empowers the Minister for Agriculture to declare Rennell or part of it as a

biosecurity controlled area, which would then allow the Director to require that measures

be taken within that area to control the spread of pests and diseases (such as baiting). As

the Act only recently came into force, it remains to be seen if and how it will be

implemented. Enforcing the legislation, particularly in remote places, will be a significant

challenge.

(D) Laws concerning protected areas

The PA Act is an example of modern protected area legislation that is well suited to

Solomon Islands’ plural legal system. Amendments to the Protected Area Regulations

2012 (the PA Regulations) to address ambiguities and inconsistencies in the legislation

have previously been identified by the author and others, and communicated to the

Ministry of Environment.58 Even in the absence of such amendments, the PA Act could

contribute to addressing some of the threats to the OUV of East Rennell, but there are

significant limits to the protection that the Act provides.

The implementation of the Act at East Rennell would make logging and mining within

the site unlawful, so would provide long-term protection against these significant threats.

However, it would not prevent the continuation of operations in West Rennell, nor the

approval of future developments there. The protection of East Rennell against those

activities would therefore remain dependent on decision-making under the FRTU Act, the

MM Act and the Environment Act.

58 Together with others, the author has provided suggested amendments to the Ministry of Environment. See Live and Learn

Environmental Education and Landowners’ Advocacy and Legal Support Unit, Proposed Amendments to the Protected Areas Regulations 2012 (2013). See also generally Stephanie Price et al, Environmental Law in Solomon Islands (Public Solicitor’s Office, Solomon Islands Government, 2015) ch 8.

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Rules addressing issues such as the harvesting of species could be included in East

Rennell’s management plan, which would have legal effect pursuant to the PA Act. These

rules could reflect existing customs, reducing the likelihood of conflict between the plan

and customary rights, and making the plan more relevant and understandable to the East

Rennellese people. The plan could also provide the framework for climate change

adaptation and mitigation measures, as well as including provisions concerning invasive

species. It could not however be used to require that biosecurity measures be taken outside

the boundaries of the site, so the Biosecurity Act would remain critical for addressing the

threats posed by invasive species.

Local community members could be appointed to the management committee and as

rangers, to help implement the management plan and enforce its rules. While this would

allow the East Rennellese to maintain significant control over their land, implementing

and enforcing the law will still be challenging, in part because they will not necessarily

possess the will and resources required for the relevant tasks.

If the PA Act is to be implemented at East Rennell, the application process needs to be

navigated carefully, with due regard to the numerous issues raised in chapter 8 of this

research. Importantly, it will require extensive consultations with local people. The

consultation process that was undertaken by the author (working with Live and Learn

Environmental Education (LLEE)) in 2013 was only the very beginning of this work.

Many more meetings and discussions must occur to ensure that the local communities

fully understand the application process, and the implications of their land becoming a

protected area. As explained further in 9.3.3(E), consultations will also have to address

the scope and content of the management plan (including its relationship with custom)

and the composition of the management committee (including its relationship with

customary governance). Further research into these issues should be undertaken as part

of any attempt to implement the Act at East Rennell.

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(E) Gaps in the legislative framework for World Heritage protection

This research identified three further key gaps in Solomon Islands’ legislative framework

for WH protection (see chapter 6). Firstly, Solomon Islands has no broad threatened

species legislation. The Fisheries Management Act 2015 and the FRTU Act give relevant

government decision-makers the power to protect certain marine and tree species.

However, not all plants and animals whose conservation may be necessary for the

preservation of a site’s OUV fall within the scope of these laws. For example, there is no

national law that allows for the protection of important bird species.

Secondly, Solomon Islands’ lacks climate change legislation, and there is no express

requirement under any law for that issue to be taken into account in administrative

decision-making (including decisions concerning logging and mining proposals). As East

Rennell’s management plan does not include any climate change mitigation or adaptation

measures, there is currently no framework for dealing with the threats it poses to the OUV

of the site or the food security and livelihoods of the East Rennellese people.

Finally, Solomon Islands does not have any legislation specifically designed for the

protection of culturally significant places, although cultural landscapes can be declared

as protected areas under the PA Act. Any cultural heritage legislation that is developed

for Solomon Islands would need to be tailored to the nature of the country’s heritage

places. Future research should therefore consider the types of culturally significant sites

that require protection, the threats to those sites, and the scope for them to be protected

through the PA Act and other existing legislation. Such an assessment could reveal that

amending existing laws is a more efficient and effective approach than enacting new

legislation for the protection of culturally significant sites.

(F) Other issues warranting further research

This research made an important contribution to the body of knowledge concerning WH

protection by providing the first comprehensive analysis of legislation that could be

utilised to protect East Rennell. Specific issues concerning that legislation warranting

further research have been noted in (A) – (E) above. There also remains scope for research

into the challenges and opportunities presented by other laws that are potentially relevant

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to future WH sites, such as those dealing with urban development, commercial fisheries,

the export of protected wildlife, pollution control, and World War II relics and wrecks.

Furthermore, the present research did not involve any comparative analysis. Comparisons

with other Pacific Island States, or nations outside the region that share similar

characteristics with Solomon Islands, could reveal new opportunities for WH protection.

Clearly, detailed analysis would have to be undertaken before it could be assumed that

approaches utilised in other countries, and in particular other regions, could be

successfully applied in Solomon Islands.

9.3.3 Supporting the protection of the East Rennell World Heritage Site by the

East Rennellese people

This research explored the involvement of local communities in WH protection through

a legal lens, finding that the East Rennellese people can contribute to WH protection

through their customary legal system and their decision-making under State legislation,

particularly laws concerning extractive industries and protected areas. However, there are

limits to the extent to which they can ensure the conservation of the site. Customary laws

do not deal with many of the threats to the site’s OUV, and there are issues with customary

governance on the island. Furthermore, the East Rennellese face significant legal and

practical challenges when utilising State legislation to protect their land. Their

contribution to the conservation of the area’s OUV must also be considered in its broader

context. Many local community members are disenchanted with the WH program, which

is not conducive to them participating in efforts to protect the site’s OUV. Furthermore,

they are generally more concerned with the protection of their livelihoods than the

protection of WH, which is understandable given their lack of food security, and the

limited social services and infrastructure available on the island. Given these findings,

key issues that should be considered in the design of initiatives to support the East

Rennellese people to conserve WH are set out below.

(A) Recognising the diversity of views held by the East Rennellese people

Land and marine tenure in Solomon Islands is highly fragmented, so a WH site will rarely

be owned by one landowner group. Opinions concerning issues such as conservation and

development are likely to vary both between and within such groups. Written agreements

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that community leaders make concerning WH will not necessarily hold significant

weight, as there is no guarantee that future (or even present) generations will feel bound

by them.

While there was broad support among the East Rennellese people for WH listing when

the site was nominated, available information suggests that this support has waned, and

some people now support the logging of the area. The level of community support for

WH is likely to continue to ebb and flow, so it is both inaccurate and unhelpful to assume

that they possess a unified or constant opinion about the conservation or development of

their land. Rather, the diversity and fluidity of the views of the East Rennellese people

must be acknowledged in the design of any WH initiatives involving them. Peoples’

opinions will inevitably change, and ongoing discussions and negotiations will be

required to maintain the requisite level of community support for conservation. Efforts

should be made to support and strengthen the decision-making processes of the East

Rennellese people, to help them deal with diverse and changing community attitudes

towards WH conservation.

(B) Strengthening customary protection of the World Heritage values of East

Rennell

While no comprehensive empirical research concerning the customary protection of East

Rennell has been conducted, recent literature (analysed in chapter 6) suggests there is

little evidence of contemporary sustainable resource management practices and there are

substantial problems with customary governance on the island. Further multi-disciplinary

empirical research to explore the scope and strength of customary protection at East

Rennell is warranted, including documenting relevant customs, land tenure laws, dispute-

resolution procedures and traditional practices. This work should also assess if and how

the East Rennellese people could be supported to utilise their customary system to protect

the site’s OUV, including the extent to which the customary system can evolve and adapt

to meet new challenges, such as invasive species and climate change. Further work is also

required to explore if and how the legitimacy of the chiefs within the communities can be

improved, and to clarify the relationship between customary structures and any new local

governance structures that are established.

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The PA Act could potentially provide a framework for this work, however as the Act has

not yet been broadly utilised, it is too early to know whether it will be the most appropriate

approach (see (D) below). Consultations with the East Rennellese communities may

reveal other options. For example, Allen et al reported that during their field work in

Solomon Islands they repeatedly heard calls from local community members for the

provision of external assistance to strengthen customary systems, including more training

and awareness work among chiefs, the establishment of a code of conduct for chiefs,

support from the police and State courts to back the resolutions of customary governance

bodies, and the payment of chiefs for their services.59 Whether these or other initiatives

would assist the East Rennellese to strengthen their customary protection warrants further

investigation.

(C) Supporting livelihood development at East Rennell

Food security and other livelihood issues are the dominant concern for most East

Rennellese, who increasingly want to participate in the cash economy to support their

subsistence lifestyles. It therefore cannot be assumed that they will be willing to restrict

their income-generating activities (such as resource harvesting) purely for the sake of

protecting WH. It also cannot be assumed that they will be willing to dedicate time and

energy towards WH conservation activities such as monitoring and enforcement, in the

absence of receipt of tangible benefits.

While WH is not the answer to all social and economic problems, efforts to implement

the Convention must aim to assist local communities to obtain and maintain an adequate

standard of living.60 Furthermore, as Solomon Islanders are rarely interested in

participating in conservation programs that are not accompanied by promises of

development,61 pursuing WH protection through the framework of sustainable

development is necessary for practical reasons.

59 Matthew Allen et al, Justice Delivered Locally: Systems, Challenges and Innovations in Solomon Islands (World Bank, 2013)

69. 60 Gonzalo Oviedo and Tatjana Puschkarsky, ‘World Heritage and Rights-Based Approaches to Nature Conservation’ (2012)

18(3) International Journal of Heritage Studies 285, 291. 61 Martha Macintyre and Simon Foale, ‘Global Imperatives and Local Desires: Competing Economic and Environmental

Interests in Melanesian Communities’ in Victoria Lockwood (ed), Globalisation and Culture Change in the Pacific Islands (Pearson Prentice Hall, 2004) 149, 161.

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A national priority for Solomon Islands under the Pacific World Heritage Action Plan

2016 – 2020 is the development of sustainable income generating mechanisms for the

East Rennellese communities.62 Similarly, one of the proposed actions under the National

Biodiversity Strategic Action Plan 2016 – 2020 is the development of a new management

plan for East Rennell, which accommodates the development of sustainable livelihood

options and infrastructure investment on the island.63 While this should be supported, it

must be preceded by a study of local development options, including an assessment of

past projects. History has shown that the establishment of income generating projects in

the area is very challenging. None of the small business enterprises that were established

in conjunction with the WH nomination or LLEE’s 2013 protected area project were

successful in the long term. Indeed, Allen et al have found that in Rennell almost all small-

scale projects have failed, which is a common cause of community grievance.64 The

reasons behind the failure of past projects should be analysed to ascertain whether any

lessons can be learned from them for future initiatives. Opportunities for local

development must also be assessed in light of detailed knowledge of land tenure and

customary governance, both of which will influence the success of projects. In addition,

lessons that may be learned from other jurisdictions should be investigated. One option

that should be explored is the potential for the United Nations Programme on Reducing

Emissions from Deforestation and Forest Degradation (UN-REDD) to be implemented

on Rennell.65

Identifying feasible options for local economic development at East Rennell will be

difficult, given the isolation and geography of the island. Nevertheless, it must be a

prioritised, as it is highly unlikely that the East Rennellese people will undertake any WH

protection measures that would threaten their livelihoods, and which they do not perceive

to be in their interests. Furthermore, the SIG is unlikely to proactively act to protect the

site unless its actions are strongly supported by the East Rennellese people. As such, in

the absence of local development, it is debateable whether the OUV of East Rennell can

be protected in the long term.

62 Pacific World Heritage Action Plan 2016-2020 (2016) 16. 63 Solomon Islands Ministry of Environment, Climate Change, Disaster Management and Meteorology, National Biodiversity

Strategic Action Plan 2016 – 2020 (2016) 101. 64 Allen et al, above n 59, 24. 65 The potential for a REDD project to be implemented at East Rennell has been subject to some analysis: see Scott Alexander

Stanley, REDD Feasibility Study for East Rennell World Heritage Site, Solomon Islands (Secretariat of the Pacific Community and Deutsche Gesellschaft für Internationale Zusammenarbeit, 2013). For a discussion of the implementation of REDD in Solomon Islands more generally, see Jennifer Corrin, Background Analysis of REDD + and Forest Carbon Rights in Solomon Islands (Secretariat of the Pacific Community and Deutsche Gesellschaft für Internationale Zusammenarbeit, 2012).

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(D) Supporting the East Rennellese people to enforce their rights under

extractive industry legislation

Except in limited circumstances, logging and mining cannot occur on customary land

without the consent of the landowners. While this would suggest that Solomon Islanders

have significant power to protect their heritage against the impacts of these activities, in

practice this is not the case. Ambiguities in the drafting of the landowner consent

provisions of relevant legislation, and their inconsistency with some customary laws,

creates uncertainty concerning whose consent is legally required. This situation is often

manipulated by powerful people within landowning groups working in cohorts with

resource companies to reap the benefits of land development. In the absence of significant

government oversight and effective dispute resolution processes, in practice logging and

mining often occurs without the consent of all people who under custom have the right to

make decisions concerning the relevant land. It is also very difficult for landowners to

enforce their rights, given their limited access to legal services and the Honiara-centric

nature of the State legal system.

To date, there has been insufficient support for logging or mining among the East

Rennellese people for any proposal to be successful. However, support for these

developments may increase as livelihood pressures mount. In any event, given the issues

referred to above, logging or mining could occur despite a high level of opposition among

community members.

There is a dire need for substantial reform of laws regulating extractive industries. In

addition to the issues referred to in 9.3.2(B), the legislation should be amended to

incorporate new approaches to identifying the local people who are entitled to authorise

developments. The legislation must be sufficiently flexible to accommodate the variety

of land tenure systems that exist around Solomon Islands, including in Polynesian

outlying islands like Rennell where land ownership is more individualised than elsewhere

in the country. There also needs to be greater government oversight over the agreement

making process, to ensure that agreements with resource companies are only signed with

the free, prior and informed consent of the relevant landowners. The dispute resolution

processes under the laws also need to be strengthened, to enable the resolution of disputes

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in a timely and fair manner. In addition, amendment of resource legislation to give any

person who may be affected by a logging or mining operation the right to object to the

approval of that operation would give the East Rennellese greater power to protect the

WH site against these activities.

In lieu of such reforms, it is essential that the East Rennellese people are supported to

reduce the chance of logging or mining occurring without full landowner approval. The

SIG could assist by increasing its oversight of the approvals process, including by

scrutinising agreements between landowners and resources companies more carefully to

ensure that they meet the legislative requirements. Other groups could provide support by

ensuring that the East Rennellese people are informed about any extractive industry

proposals for their land in a timely manner, and improving their access to legal services

to help them exercise their rights under resources legislation. In addition, given that the

East Rennellese people have little capacity to influence activities occurring in West

Rennell, and the SIG’s reluctance to refuse developments supported by the landowners,

the West Rennellese people need to be involved with efforts to protect the WH site. This

might include encouraging and assisting them to oppose operations that will harm the

site’s OUV.

(E) Supporting the East Rennellese people to utilise the Protected Areas Act

If the East Rennellese people wish to utilise the PA Act to protect their land, they must

prepare and submit an application to the Minister for Environment. An application must

demonstrate compliance with the landowner consent process prescribed under the PA

Regulations, and must include a management plan and details of the proposed

management committee. The East Rennellese people are likely to require assistance to

navigate this application process.

The prescribed landowner consent process requires that a meeting be held in each

‘landowning community’ so that consensus for making a protected area application can

be reached. In practice, numerous meetings will be required to ensure that all relevant

people are adequately informed about and involved in the decision-making process. When

designing the community consultations, the requirements under the PA Regulations and

customary decision-making processes must be considered, as they are not necessarily

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consistent. This will help ensure that any decision that is reached not only satisfies the

legislative requirements but is also considered to be legitimate by community members.

An application for a protected area declaration must be accompanied by a management

plan that meets the requirements of the PA Regulations. The experiences of implementing

the existing 2007 management plan66 should be drawn upon in the preparation of any new

plan for East Rennell. For example, one of the reasons that the 2007 plan has been barely

implemented is that it lacks any basis under custom or State law. A protected area

management plan would have status under the PA Act, but its relationship to customary

law must still be carefully assessed. Relevant questions to ask include to what extent can

and should the plan’s provisions reflect custom? What impact, if any, will incorporation

of customary laws into the plan have on those customs? How will any inconsistency

between the plan and custom be resolved?

The scope and objectives of the management plan must also be carefully considered. The

2007 plan’s focus on the conservation of the natural values of East Rennell is likely to

contribute to the East Rennellese people’s lack of interest in it. The plan’s focus is

understandable, given that it was drafted in the context of the implementation of the

Convention. However, as a result it does not address the preservation of cultural heritage

or livelihood issues, which are of most concern to the local communities. The potential

for any new management plan to better reflect the needs and aspirations of the local

people, whilst also supporting the protection of the site’s OUV, should be investigated. A

management plan is unlikely to be successful unlessmeasures to protect the site’s WH

values are incorporated into a broader strategy that addresses the East Rennellese peoples’

desire to improve their livelihoods and preserve their cultural identity. Other mechanisms

for making the plan more understandable and relevant to the local communities should

also be investigated, such as translating it into their local language.

A protected area application for East Rennell would also have to contain details of the

proposed management committee. The committee could comprise an existing governance

body (such as the Council of Chiefs or the Lake Tegano World Heritage Site Association

(the LTWHSA)) or a new entity. Whatever its composition, the relationship of the

66 Laurie Wein, East Rennell World Heritage Site Management Plan (Solomon Islands National Commission for UNESCO,

2007).

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committee to customary governance, and its willingness and capacity to serve, must be

considered. For example, if the LTWHSA was appointed as the management committee,

would this influence the jurisdiction and legitimacy of the Council of Chiefs? How would

disputes between the LTWHSA and the Council be resolved? If the Council of Chiefs

became the management committee, would that influence its ability to enforce matters of

custom? Would it have the capacity to undertake the statutory duties of a management

committee? How would it manage its affairs to maintain its customary decision-making

processes but also comply with the procedural requirements prescribed in the PA

Regulations? The East Rennellese people are likely to need assistance to work through

these issues, and to formalise the establishment of the committee. For example, if the

LTWHSA was appointed as the committee its Constitution would requirement

amendment.67

Finally, the East Rennellese people will need support with the ongoing management of

the protected area, at least in the short term. The 2007 management plan has not been

effective in part because the local communities were principally charged with

implementation, but they lack the capacity and resources to undertake this task. A

protected area will not be successful unless long-term funding sources are identified to

support the implementation of the management plan and to enable the management

committee to carry out its duties.

9.4 Conclusion

By exploring the implementation of the Convention through a legal lens, this research

provided new insights into WH protection in Solomon Islands and the Pacific more

broadly. It has identified substantial opportunities for utilising the Convention to conserve

the region’s impressive cultural and natural places, stemming from the scope of the treaty,

the Committee’s broadening approach to heritage and its protection, and the legally plural

nature of Pacific Island States. However, it recognised even more challenges,

demonstrating that protecting Pacific Island heritage will rarely be easy.

67 Suggested amendments to the Constitution were drafted by the author in 2013 and provided to the LTWHSA committee, as

part of her work for Live and Learn Environmental Education.

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East Rennell cannot be described as a success story, at least not yet. While its inscription

on the WH List was a milestone in the development of the Convention regime, it has not

been protected to the level expected by the Committee. In addition, its listing has not

generated the benefits anticipated by the SIG and the East Rennellese people, leaving

them somewhat disenchanted with the WH process and rendering WH protection a low

priority. In this context, it is unclear whether the island’s incredible ecosystems and

unique species can be conserved for future generations, in accordance with the goals of

the Convention.

What is clear is that the East Rennellese people are integral to the island’s future. It is

their home, the basis of their livelihoods and the foundation of their cultural identity. They

are the key decision-makers concerning their land, so efforts to protect the site’s OUV

will always be intimately entwined with their needs and aspirations. Any resolutions or

projects designed to strengthen the protection of the site that fail to recognise that are

unlikely to succeed. Successful outcomes are only likely to be achieved if the Convention

bodies, the SIG and the communities are able to agree upon and pursue common goals

for the conservation of the area’s heritage.

327

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Strasser, Ian, ‘Putting Reform into Action: Thirty Years of the World Heritage Convention: How to Reform a Convention without Changing its Regulations’ (2002) 11(2) International Journal of Cultural Property 215 Strathern, Andrew and Pamela J Stewart (eds), Kuk Heritage: Issues and Debates in Papua New Guinea (University of Pittsburgh, 1998) Sullivan, Marjorie, Recognition of Customary Land in the Solomon Islands: Status, Issues and Options, Resource Management in Asia-Pacific Working Paper 66 (Australian National University, 2007) Sulu, Reuben, ‘Traditional law and the Environment in the Solomon Islands’ (2004) 17 SPC Traditional Marine Resource Management and Knowledge Information Bulletin 20

Tabbasum, Salamat Ali and Paul Dingwall, Report on the Mission to East Rennell World Heritage Property and Marovo Lagoon, Solomon Islands, 30 March – 10 April 2005 (IUCN and World Heritage Centre, 2005) Tabbasum, Salamat Ali, ‘Developing the Solomon Islands Tentative List’ in Anita Smith (ed), World Heritage in a Sea of Islands: Pacific 2009 Programme, World Heritage Papers 34 (UNESCO, 2012) 34 Tamanaha, Brian Z, ‘Understanding Legal Pluralism: Past to Present, Local to Global’ (2008) 30 Sydney Law Review 375 Tamanaha, Brian, ‘The Rule of Law and Legal Pluralism in Development’ in Brian Z Tamanaha, Caroline Sage and Michael Woolcock (eds), Legal Pluralism and Development: Scholars and Practitioners in Dialogue (Cambridge University Press, 2012) 34 Taylor, Ken and Kirsty Altenburg, ‘Cultural Landscapes in Asia-Pacific: Potential for Filling World Heritage Gaps’ (2006) 12(3) International Journal of Heritage Studies 267 Techera, Erika J, ‘Protected Area Management in Vanuatu’ (2005) 2 Macquarie Journal of International and Comparative Environmental Law 107

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UNESCO / ICCROM / ICOMOS / IUCN, Managing Cultural World Heritage, World Heritage Resource Manual (UNESCO, 2013) United Nations Environment Programme (UNEP), Pacific Islands Environment Outlook (UNEP, 1999) United Nations Environment Programme World Conservation Monitoring Centre (UNEP-WCMC), Identifying Potential Overlap Between Extractive Industries (Mining, Oil and Gas) and Natural World Heritage Sites (2013)

United Nations Office of the High Representative for the Least Developed Countries, Landlocked Developing Countries and Small Island Developing States (UN-OHRLLS), Small Island Developing States: Small Islands Big(ger) Stakes (UN, 2011) van der Ploeg, Rick, ‘Welcome Address by the Chair of the conference’ in Eléonore de Merode, Rieks Smeets and Carol Westrik (eds), Linking Universal and Local Values: Managing a Sustainable Future for World Heritage, World Heritage Papers 13 (UNESCO, 2004) 24 Vierros, Marjo, Alifereti Tawake, Francis Hickey, Ana Tiraa and Rahera Noa, Traditional Marine Management Areas of the Pacific in the Context of National and International Law and Policy (United Nations University, 2010) Veitayaki, Joeli, Akosita D R Nakoro, Tareguci Sigarua and Nanise Bulai, ‘On Cultural Factors and Marine Managed Areas in Fiji’ in Jolie Liston, Geoffrey Clark and Dwight Alexander (eds), Pacific Island Heritage: Archaeology, Identity and Community (ANU E Press, 2011) 37 von Benda-Beckmann, Franz and Keebet von Benda-Beckmann, ‘The Dynamics of Change and Continuity in Plural Legal Orders’ (2006) 53-54 Journal of Legal Pluralism 1

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von Droste, Bernd, ‘The Concept of Outstanding Universal Value and its Application: From the Seven Wonders of the Ancient World to the 1,000 World Heritage Places Today’ (2011) 1(1) Journal of Cultural Heritage Management and Sustainable Development 26 Vrdoljak, Ana Filipa, ‘Article 14 The Secretariat and Support of the World Heritage Committee’ in Francesco Francioni (ed), The 1972 World Heritage Convention: A Commentary, Oxford Commentaries on International Law (Oxford University Press, 2008) 243 Wairiu, Morgan, ‘History of the Forestry Industry in Solomon Islands: The Case of Guadalcanal’ (2007) 42(2) Journal of Pacific History 233 Watson, Alan, ‘An Approach to Customary Law’ (1984) 3 University of Illinois Law Review 561 Ween, Gro B, ‘World Heritage and Indigenous Rights: Norwegian Examples’ (2012) 18(3) International Journal of Heritage Studies 257 Weiss, Edith Brown, Daniel B Magraw and Paul C Szasz, International Environmental Law: Basic Instruments and References (Transnational Publishers, 1992) 171 Wesley-Smith, Terence, ‘Changing Patterns of Power’ in Moshe Rapaport (ed), The Pacific Islands: Environment and Society (University of Hawai’i Press, 2013) 147 West, Paige and Dan Brockington, ‘An Anthropological Perspective on Some Unexpected Consequences of Protected Areas’ (2006) 20(3) Conservation Biology 609 Whitby-Last, Kathryn, ‘Article 1 Cultural Landscapes’ in Francesco Francioni (ed), The 1972 World Heritage Convention: A Commentary (Oxford University Press, 2008) 51 White, Geoffrey M, ‘Three Discourses of Custom’ (1993) 6(4) Anthropological Forum 475 White, Geoffrey, Indigenous Governance in Melanesia, State, Society and Governance in Melanesia Discussion Paper (The Australian National University, 2007) Wilson, Meredith, Chris Ballard and Douglas Kalotiti, ‘Chief Roi Mata’s Domain: Challenges for a World Heritage Property in Vanuatu’ (2011) 23(2) Historic Environment 5 Wilson, Meredith, Chris Ballard, Richard Matanik and Topie Warry, ‘Community as the First C: Conservation and Development through Tourism at Chief Roi Mata’s Domain, Vanuatu’ in Anita Smith (ed), World Heritage in a Sea of Islands: Pacific 2009 Programme, World Heritage Papers 34 (UNESCO, 2012) 68 Wingham, Elspeth J, Nomination of East Rennell, Solomon Islands by the Government of Solomon Islands for Inclusion in the World Heritage List Natural Sites (1997)

Wingham, Elspeth J, Resource Management Objectives and Guidelines for East Rennell, Solomon Islands (May 1998), attached as attachment 1 to Elspeth J Wingham,

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Nomination of East Rennell, Solomon Islands by the Government of Solomon Islands for Inclusion in the World Heritage List Natural Sites (1997) Wingham, Elspeth J, World Heritage / Ecotourism Programme: Draft Project Implementation Document, August 1998, attached as attachment 3 to Elspeth J Wingham, Nomination of East Rennell, Solomon Islands by the Government of Solomon Islands for Inclusion in the World Heritage List Natural Sites (1997) Wingham, Elspeth J and Ben Devi, ‘The Involvement of Local People in the Management of a Proposed World Heritage Site at East Rennell, Solomon Islands’ in Hans D Thulstrup (ed), World Natural Heritage and the Local Community: Case Studies from Asia Pacific, Australia and New Zealand (UNESCO, 1999) 79 Wolff, T, ‘The Fauna of Rennell and Bellona, Solomon Islands’ (1969) 255(800) Philosophical Transactions of the Royal Society of London, Series B, Biological Sciences 321 Wolff, Torben (ed), The Natural History of Rennell Islands, British Solomon Islands. Scientific Results of the Danish Rennell Expedition, 1951 and the British Museum (Natural History) Expedition 1953 (Danish Science Press, volumes 1 – 4, 1958-1962) Wolff, Torben (ed), The Natural History of Rennell Island, British Solomon Islands. Scientific Results of the Noona Dan Expedition (Rennell Section, 1962) and The Danish Rennell Expedition 1965 (Danish Science Press, volumes 5 – 8, 1968) Wong, Tim, Elery Hamilton-Smith, Stuart Chape and Hans Friederich (eds), Proceedings of the Asia-Pacific Forum on Karst Ecosystems and World Heritage (Gunung Mulu National Park World Heritage Area, Malaysia, 26 – 30 May 2001) Woodman, Gordon R, ‘Ideological Combat and Social Observation: Recent Debate About Legal Pluralism’ (1998) 42 Journal of Legal Pluralism and Unofficial Law 21 Woodman, Gordon, ‘Why There Can be No Map of Law’, Legal Pluralism and Unofficial Law in Social, Economic and Political Development: Papers of the XIIIth International Congress of the Commission on Folk Law and Legal Pluralism (Chiangmai, Thailand, 7–10 April, 2002) 383 World Wide Fund for Nature, Safeguarding Outstanding Natural Value: The Role of Institutional Investors in Protecting Natural World Heritage Sites from Extractive Activity (2015) Yusuf, Abdulqawi A, ‘Article 1 Definition of Cultural Heritage’ in Francesco Francioni (ed), The 1972 World Heritage Convention: A Commentary (Oxford University Press, 2008) 23 Zikuli, Jacob and Hazel Clothier, Community Attitudes and Perceptions Towards the East Rennell World Heritage Programme (Live and Learn Environmental Education, 2008) Zorn Jean G, ‘Customary Law in the Papua New Guinea Village Courts’ (1990) 2(2) The Contemporary Pacific 279

358

Zorn, Jean G, ‘Making Law in Papua New Guinea: The Influence of Customary Law on Common Law’ (1991) 14(4) Pacific Studies 1 Zorn, Jean and Jennifer Corrin Care, ‘’Barava Tru’: Judicial Approaches to the Pleading and Proof of Custom in the South Pacific (2002) 51 International and Comparative Law Quarterly 612 Zubra, Melanie, Helen Ross, Arturu Izurieta, Phillip Ris, Ellie Bock and Fikret Berkes, ‘Building Co-Management as a Process: Problem Solving Through Partnerships in Aboriginal Country, Australia’ (2012) 49 Environmental Management 1130 Zurstrassen, Matthew, Customary Dispute Resolution Research Project: Final Report to the Regional PJDP Meetings in Samoa in March 2012, Pacific Judicial Development Programme (2012) Cases

Solomon Islands Alevangana v Kegu [2012] SBHC 1 Allardyce Lumber Company Ltd v Attorney General [1989] SBHC 1 Allardyce Lumber Company Ltd v Laore [1990] SBHC 46 Forest v Ali [1994] SBHC 54 Kolombangara Island Biodiversity Conservation Association Trust Board v Attorney General and Others (High Court of Solomon Islands, CC 428 of 2011) Korean Enterprises Limited v Attorney General [2014] SBCA 4 Linear Perspective Ltd v Attorney General [2011] SBHC 18 Pitanoe v Minister for Forestry, Environment & Conservation [1998] SBHC 56 Simbe v East Choiseul Area Council [1999] SBCA 9 SMM Solomon Ltd v Attorney General; Bogotu Minerls Ltd v Attorney General [2014] SBHC 91 Talasasa v Attorney General [2012] SBHC 85 Tovua v Meki [1989] SBHC 3; [1988-1989] SILR 74 Other jurisdictions Commonwealth v Tasmania (1983) 46 ALR 625 Richardson v Forestry Commission (1988) 77 ALR 237

359

Legislation and Bills

Solomon Islands Biosecurity Act 2013 Biosecurity Regulations 2015 Choiseul Province Business Licence Ordinance 2011 Choiseul Province Preservation of Culture Ordinance 1999 Choiseul Province Resource Management Ordinance 1997 Criminal Procedure Code (Cap. 7) Draft Lake Tegano Natural Heritage Park Ordinance 2009 Environment Act 1998 Environment Regulations 2008 Fisheries Act 1972 Fisheries Act 1998 Fisheries Management Act 2015 Fisheries Management Regulations 2017 Fisheries Ordinance 1972 Fisheries (Prohibition of Export of Dolphins) Regulations 2013 Fisheries Regulations 1972 Forest and Timber Amendment Act 1977 Forest Resources and Timber Utilisation Act (Cap. 40) Forest Resources and Timber Utilisation (Felling Licences) Regulations 2005 Forest Resources and Timber Utilisation (Prescribed Forms) Regulations (Cap. 40) Forest Resources and Timber Utilisation (Protected Species) Regulations 2012 Interpretation and General Provisions Act (Cap. 85) Isabel Province Resource Management and Environmental Protection Ordinance 2005

360

Land and Titles Act (Cap. 133) Land Regulation 1914 Local Courts Act (Cap. 19) Makira Preservation of Culture and Wildlife Ordinance 1985 Mines and Minerals Act (Cap. 42) National Parks Act (Cap. 149) Native Courts Ordinance 1942 Protected Areas Act 2010 Protected Area Regulations 2012 Protection of Wrecks and War Relics Act (Cap. 150) Provincial Government Act 1997 Rennell and Bellona Province Business Licence Ordinance 1995 Solomon Islands Independence Order 1978, sch (Constitution of Solomon Islands) Town and Country Planning Act (Cap. 154) Western Province Fisheries Ordinance 2011 Western Province Resource Management Ordinance 1994 Wild Birds Protection Act (Cap. 45) (repealed) Wildlife Protection and Management Act 1998 Wildlife Protection and Management (Amendment) Bill 2016 Wildlife Protection and Management Regulations 2008

Other jurisdictions Endangered Species Act 1975 (Marshall Islands) Environment Act 1999 (Kiribati) Environmental Management and Conservation Act 2002 (Vanuatu) Land Regulation 1914 (King’s Regulation No. 3) (UK) Pacific Order in Council 1893 (UK)

361

Phoenix Islands Protected Area Regulations 2008 (Kiribati) Conventions

Convention Concerning the Protection of the World Cultural and Natural Heritage, opened for signature 16 November 1972, 1037 UNTS 151 (entered into force 17 December 1975) Convention for the Protection of Cultural Property during Armed Conflict, opened for signature 14 May 1954, 249 UNTS 240 (entered into force 7 August 1956) Convention for the Protection of Natural Resources and Environment of the South Pacific Region (Noumea Convention), opened for signature 25 November 1986, 26 ILM 38 (entered into force 22 August 1990) Convention on Biological Diversity, opened for signature 5 June 1992, 1760 UNTS 79 (entered into force 29 December 1993) Convention on Conservation of Nature in the South Pacific (Apia Convention), opened for signature 12 June 1976, [1990] ATS 41 (entered into force 28 June 1990) Convention on International Trade in Endangered Species, opened for signature 3 March 1973, 993 UNTS 243 (entered into force 1 July 1975) Convention on the Law of Treaties, opened for signature 23 May 1969, 1155 UNTS 331 (entered into force 27 January 1980) Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property, opened for signature 14 November 1970, 823 UNTS 231 (entered into force 24 April 1972) Convention on the Protection of the Underwater Cultural Heritage, opened for signature 2 November 2001, 2562 UNTS 48 (entered into force 2 January 2009) Convention on the Safeguarding of the Intangible Cultural Heritage, opened for signature 17 October 2003, 2368 UNTS 3 (entered into force 20 April 2006) Convention on Wetlands of International Importance especially as Waterfowl Habitat, opened for signature 2 February 1971, 996 UNTS 245 (entered into force 21 December 1975) Convention (No. 169) Concerning Indigenous and Tribal Peoples in Independent Countries, opened for signature 27 June 1989, 1650 UNTS 383 (entered into force 5 September 1991) United Nations documents

362

Adoption of Retrospective Statements of Outstanding Universal Value, WHC 36th sess, UN Doc WHC-12/36.COM/8E (15 June 2012) 55 (East Rennell, Solomon Islands) Agenda 21, Report of the UNCED, I, UN Doc. A/CONF.151/26/Rev.1 (1992)

Barbados Programme of Action for the Sustainable Development of Small Island Developing States, UN Doc A/CONF.167/9 (October 1994) part I annex II

Budapest Declaration on World Heritage, WHC Res 26 COM 9, WHC 26th sess, UN Doc WHC-02/CONF.202/25 (1 August 2002) 6 Draft WHC Res 37 COM 7B.14, WHC 37th sess, UN Doc WHC-13/37.COM/7B (3 May 2013) (East Rennell, Solomon Islands) 29 Final Report on the Results of the Second Cycle of the Periodic Reporting Exercise for Asia and the Pacific, WHC 36th sess, UN Doc WHC-12/36.COM/10A (1 June 2012) ICOMOS, Evaluations of Nominations of Cultural and Mixed Properties to the World Heritage List, WHC 32nd sess, UN Doc WHC-08/32.COM/INF/8B1 (2008) 92 (Chief Roi Mata’s Domain, Vanuatu, Advisory Body Evaluation 1280) ICOMOS, Evaluations of Nominations of Cultural and Mixed Properties to the World Heritage List, WHC 36th sess, UN Doc WHC-12/36.COM/INF.8B1 (2012) 21 (Rock Islands Southern Lagoon, Republic of Palau, Advisory Body Evaluation 1386) ICOMOS, Evaluations of Nominations of Cultural and Mixed Properties to the World Heritage List, WHC 40th sess, UN Doc WHC/16/40.COM/INF.8B1 (July 2016) 103 (Nan Madol, Federated States of Micronesia, Advisory Body Evaluation 1503) Information on Tentative Lists and Examination of Nominations of Cultural and Natural Properties to the List of World Heritage in Danger and the World Heritage List, WHC 22nd sess, UN Doc WHC-98/CONF.203/10Rev (29 November 1998)

International Instruments for the Protection of Monuments, Groups of Buildings and Sites, UN Doc SHC/MD/17 (30 June 1971) IUCN, Evaluations of Nominations of Natural and Mixed Properties to the World Heritage List, WHC 22nd sess (1998) 79 (East Rennell, Solomon Islands) IUCN, Evaluations of Nominations of Natural and Mixed Properties to the World Heritage List (Phoenix Islands Marine Protected Area, Kiribati, Advisory Body Evaluation 1325) WHC 34th sess, UN Doc WHC/10/34.COM/INF.8B2 (2010) 19

IUCN, Implementation of the United Nations Declaration on the Rights of Indigenous Peoples in the Context of the UNESCO World Heritage Convention, WCC-2012-Res-047-EN (2012)

363

Joint ICOMOS-IUCN Paper and Papers by ICOMOS and IUCN on the Application of the Concept of Outstanding Universal Value, WHC 30th sess, UN Doc WHC-06/30.COM/INF (29 June 2006) Nominations to the World Heritage List, WHC 35th sess, UN Doc WHC-11/35.COM/8B.Add (27 May 2011) 10 (Statement of Outstanding Universal Value: Phoenix Islands Protected Area, Kiribati) Policy for the Integration of a Sustainable Development Perspective into the Processes of the World Heritage Convention, WHC GA Res 20 GA 13, 20th sess, UN Doc WHC-15/20.GA/15 (20 November 2015) 7

Presentation of the World Heritage Programme for the Pacific, WHC 31st sess, UN Doc WHC-07/31.COM/11C (10 May 2007) annex I (Appeal to the World Heritage Committee from the Pacific Island State Parties) Progress Report on the Reflection on Processes for Mixed Nominations, WHC 39th sess, UN Doc WHC-15/39.COM/9B (15 May 2015) Records of the General Conference, 16th sess, UNESCO Res 2.313 (1970) 35 (Intergovernmental Programme on Man and the Biosphere) Report of the Expert Mechanism on the Rights of Indigenous Peoples on its Fifth Session (Geneva, 9 – 13 July 2012), Human Rights Council, 21st sess, UN Doc A/HRC/21/52 (17 August 2012) Report of the United Nations Conference on the Human Environment, UN Doc A/CONF.48/14/Rev.1 (5 – 16 June 1972) ch 1 (Declaration of the United Nations Conference on the Human Environment) Report of the World Heritage Committee, WHC 1st sess, UN Doc CC-77/CONF.001/9 (17 October 1977) Report of the World Heritage Committee, WHC 12th sess, UN Doc SC-88/CONF.001.13 (23 December 1988) Report of the World Heritage Committee, WHC 13th sess, UN Doc SC-89/CONF.004/12 (22 December 1989) Report of the World Heritage Committee, WHC 25th sess, UN Doc WHC-01/CONF.208/24 (8 February 2002) Report on the Expert Meeting on the ‘Global Strategy’ and Thematic Studies for a Representative World Heritage List, WHC 18th sess, UN Doc WHC-94/CONF.003/INF.6 (13 October 1994) Report on the Twelfth Session (20 – 31 May 2013), United Nations Permanent Forum on Indigenous Issues, UN ESCOR, 12th sess, UN Doc E/2013/43-E/C.19/2013/25 (2013) Reports of the Advisory Bodies, WHC 39th sess, UN Doc WHC-15/39.COM/5B (15 May 2015)

364

Revision of the Operational Guidelines, WHC 12th sess, UN Doc SC-88/CONF.007/12 (9 May 1988) Rio Declaration on Environment and Development, Report of the United Nations Conference on Environment and Development, UN Doc A/CONF.151/6/Rev.1 (1992) State of Conservation of Properties Inscribed on the World Heritage List, WHC 22nd sess, UN Doc WHC-03/27.COM/7B (12 June 2003) 11 (East Rennell, Solomon Islands) State of Conservation of the Properties Inscribed on the List of World Heritage in Danger, WHC 39th sess, UN Doc WHC-15/39.COM/7A.Add (29 May 2015) 19 (East Rennell, Solomon Islands) State of Conservation of the Properties Inscribed on the List of World Heritage in Danger, WHC 40th sess, UN Doc WHC/16/40.COM/7A.Add.2 (27 June 2016) 11 (East Rennell, Solomon Islands) State of Conservation of Properties Inscribed on the World Heritage List, WHC 28th sess, UN Doc WHC-04/28.COM/15B (15 June 2004) 15 (East Rennell, Solomon Islands) Transforming Our World: The 2030 Agenda for Sustainable Development, UNGA Res A/RES/70/L.1, UN GAOR, 70th sess, UN Doc A/RES/70/1 (21 October 2015)

UN Special Rapporteur on the Rights of Indigenous Peoples, Rights of Indigenous Peoples, UNGA 67th sess, UN Doc A/67/301 (13 August 2013)

UNESCO, Operational Guidelines for the Implementation of the World Heritage Convention, UN Doc CC-77/CONF.008 (30 July 1977) UNESCO, Operational Guidelines for the Implementation of the World Heritage Convention, UN Doc WHC/2 (1978) UNESCO, Operational Guidelines for the Implementation of the World Heritage Convention, UN Doc WHC/2/Revised (December 1988) UNESCO, Operational Guidelines for the Implementation of the World Heritage Convention, UN Doc WHC/2/Revised (February 1994)

UNESCO, Operational Guidelines for the Implementation of the World Heritage Convention, UN Doc WHC 97/2 (February 1997) UNESCO, Operational Guidelines for the Implementation of the World Heritage Convention, UN Doc WHC.08/01 (January 2008) UNESCO, Operational Guidelines for the Implementation of the World Heritage Convention, UN Doc WHC.16/01 (26 October 2016)

365

United Nations Declaration on the Rights of Indigenous Peoples, GA Res 61/295, UN GAOR, 61st sess, 107th plen mtg, Supp No 49, UN Doc A/RES/61/295 (13 September 2007) United Nations Humans Rights Council, Report by the Special Rapporteur on the Situation of Human Rights and Fundamental Freedoms of Indigenous People, James Anaya, Addendum: report on the situation of indigenous peoples in Nepal, A/HRC/12/34/Add.3 (20 July 2009)

WHC Res CONF 001 VIII.20-27, WHC 12th sess, UN Doc SC-88/CONF.001.13 (23 December 1988) 5 WHC Res CONF 003 XIV.3, WHC 18th sess, UN Doc WHC-94/CONF.003.16 (31 January 1995) 64 WHC Res CONF 203 VIII.A.1, WHC 22nd sess, UN Doc WHC-98/CONF/203/18 (29 January 1999) 25

WHC Res CONF 203 XIV.3, WHC 22nd sess, UN Doc WHC-98/CONF.203/18 (29 January 1999) 56 WHC Res 6 EXT.COM 5.1, WHC 6th extraordinary sess, UN Doc WHC-03/6 EXT.COM/8 (27 May 2003) 5 WHC Res 27 COM 6A, WHC 27th sess, UN Doc WHC-03/27.COM/24 (10 December 2003) 7 WHC Res 28 COM 15B.12, WHC 28th sess, UN Doc WHC-04/28.COM/26 (29 October 2004) 79 WHC Res 29 COM 7B.10, WHC 29th sess, UN Doc WHC-05/29.COM/22 (9 September 2005) 45 WHC Res 31 COM 7B.21, WHC 31st sess, UN Doc WHC-07/31.COM/24 (31 July 2007) 58 WHC Res 31 COM 13A, WHC 31st sess, UN Doc WHC-07/31.COM/24 (31 July 2007) 193 WHC Res 31 COM 13B, WHC 31st sess, UN Doc WHC-07/31.COM/24 (31 July 2007) 193 WHC Res 32 COM 8B.26, WHC 32nd sess, UN Doc WHC-08/32.COM/24Rev (31 March 2009) 168 WHC Res 32 COM 8B.27, WHC 32nd sess, UN Doc WHC-08/32.COM/24Rev (31 March 2009) 170 WHC Res 33 COM 7B.19, WHC 33rd sess, UN Doc WHC-09/33.COM/20 (20 July 2009) 68

366

WHC Res 34 COM 7B.17, WHC 34th sess, UN Doc WHC-10/34.COM/20 (3 September 2010) 71 WHC Res 34 COM 8B.20, WHC 34th sess, UN Doc WHC-10/34.COM/20 (3 September 2010) 206 WHC Res 34 COM 8B.2, WHC 34th sess, UN Doc WHC-10/34.COM/20 (3 September 2010) 165 WHC Res 35 COM 8B.60, WHC 35th sess, UN Doc WHC-11/35.COM/20 (7 July 2011) 249 WHC Res 35 COM 12B, WHC 35th sess, UN Doc WHC-11/35.COM/20 (7 July 2011) 266 WHC Res 35 COM 12E, WHC 35th sess, UN Doc WHC-11/35.COM/20 (7 July 2011) 270 WHC Res 36 COM 7B.15, WHC 36th sess, UN Doc WHC-12/36.COM/19 (June – July 2012) 63 WHC Res 36 COM 8B.12, WHC 36th sess, UN Doc WHC-12/36.COM/19 (June – July 2012) 165 WHC Res 36 COM 8E, WHC 36th sess, UN Doc WHC-12/36.COM/19 (June-July 2012) 225 WHC Res 37 COM 7, WHC 37th sess, UN Doc WHC-13/37.COM/20 (5 July 2013) 53 WHC Res 37 COM 7B.14, WHC 37th sess, UN Doc WHC-13/37.COM/20 (5 July 2013) 68 WHC Res 37 COM 8B.25, WHC 37th sess, UN Doc WHC-13/37.COM/20 (5 July 2013) 186 WHC Res 38 COM 7A.29, WHC 38th sess, UN Doc WHC-14/38.COM/16 (7 July 2014) 39 WHC Res 39 COM 5D, WHC 39th sess, UN Doc WHC-15/39.COM/19 (8 July 2015) 7 WHC Res 39 COM 7A.16, WHC 39th sess, UN Doc WHC-15/39.COM/19 (8 July 2015) 30 WHC Res 40 COM 8B.22, WHC 40th sess, UN Doc WHC/16/40.COM/19 (15 November 2016) 217 WHC Res 40 COM 7A.49, WHC 40th sess, UN Doc WHC-16/40.COM/19 (15 November 2016) 68

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World Commission on Environment and Development, Our Common Future, UN Doc A/42/427 (1987) annex World Heritage and Sustainable Development, WHC 39th sess, UN Doc WHC-15/39.COM/5D (15 May 2015) annex Theses

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Alliance of Small Island States, About AOSIS <http://aosis.org/about/> International Council of Mining and Metals, Mining and Protected Areas Position Statement (2003) <http://www.icmm.com/en-gb/about-us/member-commitments/position-statements/mining-and-protected-areas-position-statement> International Work Group for Indigenous Affairs (IWGIA), 8th Session of the EMRIP: Joint Statement on Indigenous Rights and World Heritage (22 July 2015) <http://www.iwgia.org/news/search-news?news_id=1234> IUCN, Natural World Heritage Sites: The Pacific’s Challenges (13 June 2014)

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<https://www.iucn.org/content/natural-world-heritage-sites-pacific%E2%80%99s-challenges> Pacific Heritage Hub, Who We Are <http://www.pacificheritagehub.org/about-us/who-we-are/> Pacific Islands Legal Information Institute <http://www.paclii.org> Solomon Islands Government, Parliament Successfully Conclude Hearings (27 January 2017) <www.parliament.gov.sb> These Are Our Powerful Worlds, Summary Report of the Working Group Workshop on the World Heritage Indigenous People’s Council of Experts (Winnipeg, Manitoba, November 5 – 8 2001) <http://www.whc.unesco.org/document/9474> UNESCO, Australia <http://whc.unesco.org/en/statesparties/au> UNESCO, Marovo – Tetepare Complex <http://whc.unesco.org/en/tentativelists/5414/> UNESCO, New Zealand <http://whc.unesco.org/en/statesparties/nz> UNESCO, Solomon Islands: International Assistance (2006) <http://whc.unesco.org/en/statesparties/sb/assistance/> UNESCO, State Parties Ratification Status <http://whc.unesco.org/en/statesparties/> UNESCO, The World Heritage Committee <http://whc.unesco.org/en/committee/> UNESCO, Tropical Rainforest Heritage of Solomon Islands <http://whc.unesco.org/en/tentativelists/5416/> UNESCO, UNESCO and IUCN Welcome New No-Go Pledge for World Heritage Sites by Tullow Oil (12 November 2015) <http://whc.unesco.org/en/news/1379/> UNESCO, UNESCO Database of National Cultural Heritage Laws <http://www.unesco.org/culture/natlaws/index.php> UNESCO, UNESCO Welcomes Growing Commitment by Oil, Gas and Mining Companies to Keep Out of World Heritage Sites (3 February 2014) <http://whc.unesco.org/en/news/1101> UNESCO, UNESCO Welcomes Pledge by Royal Dutch / Shell to Stay Out of World Heritage Sites (27 August 2003) <http://portal.unesco.org/en/ev.php-URL_ID=14175&URL_DO=DO_TOPIC&URL_SECTION=201.html> UNESCO, World Heritage and Extractive Industries <http://whc.unesco.org/en/extractive-industries/> UNESCO, World Heritage Fund <http://whc.unesco.org/en/world-heritage-fund/> UNESCO, World Heritage List Statistics <http://whc.unesco.org/en/list/stat#s1>

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UNESCO, World Heritage – Pacific 2009 Programme <http://whc.unesco.org/en/pacific2009> United Nations Committee for Development Policy, List of Least Developed Countries (as of May 2016) <http://www.un.org/en/development/desa/policy/cdp/ldc/ldc_list.pdf> United Nations Division for Social Policy and Development, Permanent Forum <https://www.un.org/development/desa/indigenouspeoples/unpfii-sessions-2.html> United Nations Office of the High Commissioner (UN-OHC), Expert Mechanism on the Rights of Indigenous Peoples <http://www.ohchr.org/EN/Issues/IPeoples/EMRIP/Pages/EMRIPIndex.aspx> United Nations Office of the High Commissioner (UN-OHC), Mandate of the Working Group on Indigenous Populations <http://www.ohchr.org/EN/Issues/IPeoples/Pages/MandateWGIP.aspx> Interviews

Interview with an officer in the Ministry of Culture (Honiara, 26 July 2013) Interview with an officer in the Ministry of Education, who was formerly the focal point for World Heritage within the Solomon Islands National Commission for UNESCO (Honiara, 28 July 2013) Interview with a conservation officer in the Ministry of Environment (Honiara, 2 August 2013) Interview with Joe Horokou, Director of the Environment and Conservation Division of the Ministry of Environment (Honiara, 15 August 2013) Interview with Bradley Tovosia, the then Minister for Environment (Honiara, 24 September 2013) Interview with Malchoir Mataki, Permanent Secretary of the Ministry of Environment (Honiara, 1 October 2013) Other

Application for Approval for Negotiation to Acquire Timber Rights (Form 1) filed by Joes Saukha Tahua (A101176, 9 December 2011) Forrest, Craig and Jennifer Corrin, ‘A Model Law to Implement the Convention on the Protection of the Underwater Cultural Heritage and its Possible Application in Plural Legal Regimes in Pacific Small Island States: A Case Study of Solomon Islands’ (Paper presented at Solomon Islands National University Workshop, Honiara, December 2014)

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<http://www.themua.org/collections/files/original/602a7962da5dd01ceafc413b8ec2d8fe.pdf> HSBC, World Heritage Sites and Ramsar Wetlands Policy (2014) Identification of World Heritage Properties in the Pacific: First World Heritage Global Strategy Meeting for the Pacific Islands Region (Suva, Fiji, 15 – 18 July 1997) Identification of World Heritage Properties in the Pacific: Second World Heritage Global Strategy Meeting for the Pacific Islands Region (Port Vila, Vanuatu, 24 – 27 August 1999) Intergovernmental Agreement on the Environment (1992) IUCN et al, World Conservation Strategy (1980) Lake Tegano World Heritage Site Association Constitution and Rules (2009) Letter from Aseri Yalangono, Deputy Secretary General of National Commission for UNESCO Solomon Islands to the Director of the UNESCO World Heritage Centre (31 August 2011) Letter from Moses K Mose, Permanent Secretary of Solomon Islands Ministry of Commerce, Employment and Tourism, to Bernd von Droste, Director of the UNESCO World Heritage Centre (1 September 1998) attached as supplementary information to Elspeth J Wingham, Nomination of East Rennell, Solomon Islands by the Government of Solomon Islands for Inclusion in the World Heritage List Natural Sites (1997) Live and Learn Environmental Education, Draft Management Plan – A Summary for East Rennell Communities (2014) Live and Learn Environmental Education and Landowners’ Advocacy and Legal Support Unit, Proposed Amendments to the Protected Areas Regulations 2012 (2013) Model Law for the Protection of Traditional Ecological Knowledge, Innovations and Practices <http://www.grain.org/system/old/brl_files/brl-model-law-pacific-en.pdf> Nara Document on Authenticity (1994) Pacific World Heritage Action Plan 2016 – 2020 (2016) Price, Anna, (Draft) Management Plan – East Rennell, Solomon Islands (2014) Republic of Fiji, World Heritage Policy of Fiji: Heritage Area Conservation for Sustainable Development <http://www.culture.gov.fj/wp-content/uploads/2013/08/21.pdf> Secretariat of the Pacific Community and the Division of Culture (Solomon Islands Ministry of Culture and Tourism), Solomon Islands Nasinol Policy Framework blong Kalsa (2012)

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Solomon Islands Government, Action Plan for Implementing the Convention on Biological Diversity’s Programme of Work on Protected Areas 2012 – 2020 (2012) Solomon Islands Government, Statement by Solomon Islands: East Rennell Property – Delivered by Agnetha Vave-Karamui, SIG Delegate to the WHC Meeting, Phnom Penh Cambodia on 18 June 2013 (2013) Solomon Islands Ministry of Environment, Climate Change, Disaster Management and Meteorology, National Biodiversity Strategic Action Plan 2016 – 2020 (2016) Solomon Islands Ministry of Environment, Conservation and Meteorology, National Biodiversity Strategic Action Plan (2009) Solomon Islands Ministry of Forests, Environment and Conservation, The Revised Solomon Islands Code of Logging Practice (Solomon Islands Government, 2002) Solomon Islands National Climate Change Policy: 2012 – 2017 (2012) Solomon Islands Office of the Auditor General, An Auditor-General’s Insights into Corruption in Solomon Islands Government, National Parliament Paper 48 (2007) Sworn Statement of Joe Horokou, Director of the Environment and Conservation Division of the Ministry of Environment, filed in High Court case CC 428 of 2011 (15 November 2010) UNESCO, Model for a National Act on the Protection of Cultural Heritage (2013) <http://www.unesco.org/new/fileadmin/MULTIMEDIA/HQ/CLT/pdf/UNESCO_MODEL_UNDERWATER_ACT_2013.pdf> Wein, Laurie, East Rennell World Heritage Site Management Plan (Solomon Islands National Commission for UNESCO, 2007) Wilson, Meredith, Plan of Management for Chief Roi Mata’s Domain (CRMD) (2006) World Commission on Culture and Development, Our Creative Diversity (2nd ed, 1996)

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Appendix: Schedule of interviews

Interview with a conservation officer in the Ministry of Environment (Honiara, 2 August 2013) Interview with Joe Horokou, Director of the Environment and Conservation Division of the Ministry of Environment (Honiara, 15 August 2013) Interview with an officer in the Ministry of Culture (Honiara, 26 July 2013) Interview with an officer in the Ministry of Education, who was formerly the focal point for World Heritage within the Solomon Islands National Commission for UNESCO (Honiara, 28 July 2013) Interview with Malchoir Mataki, Permanent Secretary of the Ministry of Environment (Honiara, 1 October 2013) Interview with Bradley Tovosia, Minister for Environment (Honiara, 24 September 2013)

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